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Exhibit 4.4
PROFIT-SHARING RETIREMENT PLAN
AND
TRUST AGREEMENT
FOR EMPLOYEES OF XXXXXX XXXXXXX INCORPORATED
This Trust Agreement is made as of the 1st day of January, 1989, by and
between XXXXXX XXXXXXX INCORPORATED, a Massachusetts corporation having its
principal places of business in Boston, Massachusetts and New York, New York
(hereinafter called the "Company"), and Xxxxxxx X. Xxxx, Xxxxxxx Xxxxxx and
Xxxxxx X. X'Xxxxxx (hereinafter called the "Trustees").
W I T N E S S E T H T H A T:
WHEREAS the Company recognized the contribution being made to the
successful operation of its business by its employees and desired to reward such
contribution and therefore established a profit sharing plan entitled
"Profit-Sharing Plan For Employees of Xxxxxx, Xxxxxxx & X. X. Day, Inc." and a
separate trust agreement to accompany said plan entitled "Xxxxxx, Xxxxxxx & X.
X. Day, Inc. Retirement Trust Agreement", which have been subsequently amended
from time to time; and
WHEREAS the Company now desires to amend, restate and combine said
profit sharing plan and accompanying trust agreement in their entirety to comply
with the Tax Reform Act of 1986 and to permit employees who are or
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shall hereafter become eligible as participants hereunder to share in additional
Company contributions through salary reduction and matching contribution
arrangements and to make various other changes thereto;
NOW, THEREFORE, the Company and the Trustees, each in consideration of
the covenants, agreements, and declarations of the other, mutually covenant,
agree, and declare as follows:
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ARTICLE I
Introduction
1.01 Creation of Trust. There has been hereby established a trust known
as the "PROFIT-SHARING RETIREMENT TRUST FOR EMPLOYEES OF XXXXXX XXXXXXX
INCORPORATED" (formerly known as the "Xxxxxx, Xxxxxxx & X. X. Day, Inc.
Retirement Trust Agreement") (the "Trust"). The Trustees shall receive any
contributions paid to the Trust and all contributions so received, together with
the income therefrom, shall be held, managed, and administered as a fund in
trust pursuant to the terms of this Agreement. The Trustees hereby confirm their
acceptance of the Trust created hereunder and agree to perform the provisions of
this Agreement on their part to be performed.
1.02 Interpretation of Trust Agreement. The Trust is established for
the exclusive benefit of the eligible Employees and their Beneficiaries. So far
as possible, this Agreement shall be interpreted in a manner consistent with
this intent and with the intent of the Company that the Trust established
hereunder shall continue to be a profit sharing plan and to satisfy those
provisions of the Employee Retirement Income Security Act of 1974 ("ERISA") and
of the Internal Revenue Code of 1986 (the "Code") relating to exempt employees'
trusts, as either of them may from time to time be amended. Except as otherwise
provided in Section 4.05 hereof, under
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no circumstances shall any property, whether corpus or income of the Trust
hereunder, or any funds contributed to the Trust, ever revert to or be used or
enjoyed by the Company or be used for any purpose other than for the exclusive
benefit of the eligible Employees or their Beneficiaries.
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ARTICLE II
Definitions
Whenever used in this Agreement, unless the context clearly indicates
otherwise, the following words shall have the following meanings:
2.01 "Affiliated Company" means (a) a corporation which, together with
the Company, is a member of a controlled group of corporations (as defined in
Section 414(b) of the Code), (b) a trade or business (whether or not
incorporated) which is under common control (as defined in Section 414(c) of the
Code) with the Company, (c) a corporation, partnership, or other entity which,
together with the Company, is a member of an affiliated service group (as
defined in Section 414(m) of the Code), or (d) any entity required to be
aggregated with the Company under Section 414(o) of the Code.
2.02 "Agreement" means this Agreement, as amended from time to time.
2.03 "Anniversary Date" means December 31 in each year.
2.04 "Beneficiary" means the person or persons designated by a
Participant, pursuant to the provisions of Section 7.04 of this Agreement, to
receive distribution of such Participant's share upon his death, and includes a
co-beneficiary or a contingent beneficiary. The term "Beneficiary" also
includes a Participant's surviving spouse if such spouse is deemed to be such
Participant's Beneficiary pursuant to section 7.04.
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2.05 "Board of Directors" means the board of directors of the Company in
office from time to time or the Executive Committee of such board, with respect
to such powers as have been delegated to it by the Board.
2.06 "Break in Service" means any Plan Year during which an Employee has
not completed or been credited with more than 500 Hours of Service with the
Company and/or an Affiliated Company.
2.07 "Committee" means the Administrative Committee constituted under
Article IX of this Agreement in office from time to time.
2.08 "Company" means Xxxxxx Xxxxxxx Incorporated and also means any
successor to all or a major portion of its business which adopts this Plan and
Trust pursuant to Section 11.05. "Company Division" means each separate
operating division of the Company.
2.09 "Company Contributions" means the contributions, if any, made by
the Company pursuant to Section 4.03.
2.10 "Compensation" of a Participant means all of the compensation of an
Employee paid by the Company as reported on Form W-2 on account of services
rendered to the Company. Notwithstanding the foregoing, (i) Compensation shall
include all amounts which would have been paid to a Participant as Compensation
but for an election by such Participant under
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Section 125 or 401(k) of the Code, (ii) Compensation shall not include any
amounts includible on Form W-2 which are
(A) attributable to any group insurance or other employee
welfare plan or any non-cash fringe benefit, prize or award;
(B) paid under a long-term deferred compensation plan or
agreement; or
(C) imputed to the Participant under Section 7872 of the Code
as a result of a loan from the Company to the Participant;
and (iii) a Participant's Compensation for any Plan Year shall not exceed
$200,000 (subject to cost-of-living adjustments made by the Secretary of
Treasury or his delegate). In determining the Compensation of a Participant for
purposes of the limitation described in the preceding sentence for any Plan
Year, the rules of Section 414(q)(6) of the Code shall apply, except that in
applying such rules, the term "family" shall include only the spouse of the
Participant and any lineal descendants of the Participant who have not attained
age nineteen (19) before the close of such Plan Year.
2.11 "Employee" means any person who is employed by the Company and who
is scheduled to complete at least 1,000 Hours of Service in a Plan Year,
excluding employees who are non-resident aliens whose compensation
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constitutes foreign source income for United States federal income tax purposes.
An Employee's employment shall be deemed to have commenced on the date on which
he first performs an Hour of Service as an Employee.
2.12 "Family Member" means an individual who is described as such in
Section 414(q)(6)(B) of the Code and who is a Participant of the Plan.
2.13 "Highly Compensated Employee" means any individual who is described
as such in Section 414(q) of the Code and who is a Participant of the Plan.
2.14 "Hour of Service" means:
(a) Each hour for which an employee is directly or
indirectly paid or entitled to payment by the Company or an
Affiliated Company for the performance of duties. These hours
shall be credited to the employee for the Plan Year(s) in which
the duties are performed; and
(b) Each hour for which an employee is directly or indirectly
paid or entitled to payment by the Company or an Affiliated Company on account
of a period of time during which no duties are performed (irrespective of
whether the employment relationship has terminated) due to vacation, holiday,
illness, incapacity (including disability), layoff, jury duty or other similar
reason. These hours shall be calculated and credited pursuant to Section
2530.200b-2 of the Department of Labor Regulations which
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are incorporated herein by reference; and
(c) Each hour for which back pay, irrespective of mitigation of
damages, has been either awarded or agreed to by the Company or an Affiliated
Company. The same hours shall not be credited under both paragraph (a) or
paragraph (b), as the case may be, and under this paragraph (c). These hours
shall be credited to the employee for the Plan Year(s) to which the award or
agreement pertains rather than the Plan Year in which the award, agreement, or
payment is made; and
(d) each hour credited, at the rate of forty (40) hours per week
for each week involved, for the following periods of time:
(i) Unpaid periods of absence authorized by the Company
in accordance with standard personnel policies of the Company,
provided the employee returns to employment with the Company
immediately upon the expiration of such authorized absence.
(ii) Unpaid military leave while the employee's
reemployment rights are protected by law, provided the employee
returns to employment with the Company within the period
prescribed by law.
Solely for purposes of determining whether a Break in Service
has occurred in a Plan Year, an employee who is absent from work by reason of
pregnancy, birth or adoption of a child, or for purposes of caring for such
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child for a period beginning immediately following such birth or adoption shall
receive credit for the Hours of Service which would otherwise have been credited
to such employee but for such absence, or in any case in which such hours cannot
be determined, eight (8) Hours of Service per day of such absence, provided,
however, that the number of Hours of Service credited under this paragraph shall
not exceed the difference between 501 and the number of Hours of Service with
which such employee would have been credited for the Plan Year to which this
paragraph is applicable. The Hours of Service credited under this paragraph
shall be credited in the first Plan Year in which such credit is necessary to
avoid a Break in Service.
2.15 "Investment Media" means (a) such one or more investment funds,
including without limitation insurance company contracts or accounts and mutual
funds, as are designated by the Trustees from time to time as being available
for investment of Participant accounts under Article V, (b) such marketable
securities as are designated by the Trustees from time to time as being
available for investment of Participant accounts under Article V, and (c) such
other marketable securities (including options) obtainable by the Trustees
either "over the counter" or on a recognized exchange, and/or in money market
mutual funds, and in such amounts, as are specifically selected
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and specified by a Participant in directions to the Trustees (in such form as
may be acceptable to the Trustees) for the investment of assets held in a
Self-Directed Account pursuant to Section 5.08. The Trustees may designate one
or more Investment Media which are sponsored and/or managed by the Company or
any Affiliated Company.
2.16 "Matching Contributions" means the contributions made by the
Company pursuant to Section 4.02.
2.17 "Normal Retirement Age" means age sixty-five (65).
2.18 "Participant" means an Employee who is eligible to
participate in the Plan as determined under Article III of the
Plan.
2.19 "Plan" means the "PROFIT-SHARING RETIREMENT PLAN FOR EMPLOYEES OF
XXXXXX XXXXXXX INCORPORATED" as set forth herein, together with any and all
amendments hereto.
2.20 "Plan Year" means the fiscal year of the Trust, being the twelve
(12) months ending on each Anniversary Date.
2.21 "Predecessor Company" means Xxxxxx, Xxxxxxx & X. X. Day, a
Massachusetts partnership.
2.22 "Salary Reduction Agreement" means the agreement entered into
between the Company and an Employee pursuant to the provisions of Section 3.04.
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2.23 "Self-Directed Account" means an account established pursuant to
the terms of the Plan as in effect on December 31, 1988 for the investment and
reinvestment of Participant deductible and nondeductible contributions made
prior to January 1, 1987 and rollover contributions made prior to January 1,
1989, at the discretion of the Participant.
2.24 "Tax Deferred Contributions" means the contributions made by the
Company pursuant to Section 4.01 of the Plan either in consideration of a
Participant's agreement to reduce his cash Compensation by a comparable amount
pursuant to a Salary Reduction Agreement or as a special Tax Deferred
Contribution designed to cause the test in Section 6.02(a)(i) or (ii) and/or the
test in Section 6.04(a)(i) or (ii) to be satisfied.
2.25 "Trust" means the trust fund created by this Agreement, including
all Investment Media, and held by the Trustees hereunder, into which all
contributions and income thereon shall be paid and out of which all payments and
distributions shall be made.
2.26 "Trustees" means the individuals named herein as trustees and any
duly appointed successor trustee or trustees.
2.27 "Valuation Date" means the Anniversary Date and, with respect to
each Investment Medium, each other date which the Committee in its sole
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discretion selects for the revaluation of that Investment Medium.
2.28 "Year of Service" means one (1) year of an employee's employment
with the Company, any Affiliated Company, and the Predecessor Company, whether
or not continuous, including service as a partner with the Predecessor Company;
provided, however, that the determination of Years of Service will be subject to
the following rules:
(a) The computation of Years of Service will be made on the
basis of Hours of Service performed by the employee during each Plan Year. An
employee will be considered to have completed one (1) Year of Service with
respect to his employment during any Plan Year if and only if such employee
completes at least 1,000 Hours of Service in such Plan Year. Notwithstanding the
foregoing, an employee's Years of Service with respect to a period of employment
prior to January 1, 1989 shall in no event be less than such employee's Years of
Service as determined under the Plan as in effect on December 31, 1988.
(b) In any case in which an individual becomes an employee by reason of
the acquisition of his prior employer by the Company, whether by merger,
acquisition of assets or stock or otherwise, his service with such prior
employer shall be included in determining his Years of Service hereunder only to
the extent that such service is required to be credited
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hereunder by Section 414(a) of the Code and any regulations promulgated
thereunder, by the terms of the agreement pursuant to which such prior employer
was acquired by the Company or by a vote of the Board.
(c) In the event an employee terminates his employment and is
subsequently reemployed, such employee's Years of Service completed prior to
such termination shall be restored upon reemployment.
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ARTICLE III
Participation
3.01 Eligibility for Participation. Each Employee who was a Participant
on December 31, 1988 shall continue to be a Participant on January 1, 1989,
provided he is still employed by the Company on that date. Each other Employee,
including each Employee hired on or after January 1, 1989, shall become a
Participant under the Plan on the day he becomes an Employee.
3.02 Determination of Eligibility by Committee. The determination of an
Employee's eligibility for membership under the Plan shall be made by the
Committee from the Company's records, and the Committee's decisions on these
matters shall be conclusive and binding upon all persons.
3.03 Duration of Eligibility. A Participant shall continue as an active
Participant until he ceases to be an Employee and, except as otherwise
specifically provided herein, shall cease to be an active Participant entitled
to share in contributions hereunder upon such cessation. To the extent a former
Participant's accounts have not been fully distributed, such former Participant
shall be treated as a Participant for purposes of applying the provisions of the
Plan to such accounts. A former Participant shall once again become an active
Participant under the
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Plan on the date on which he again becomes an Employee.
3.04 Salary Reduction Agreement. Effective on and after March 1, 1989
each Participant may, but shall not be required to, enter into a Salary
Reduction Agreement with the Company. The terms of any such Salary Reduction
Agreement shall provide that such Participant agrees to accept a reduction in
cash Compensation from the Company, in an amount equal to any whole number
percentage of his Compensation, in consideration of the Company's agreement to
contribute an equal amount into the Trust on his behalf; provided, such salary
reduction percentage shall not exceed fifteen percent (15%); and provided
further, such reduction shall not exceed $7,627 (or such greater dollar amount
as may be established from time to time by the Secretary of the Treasury under
Section 402(g) of the Code) in any calendar year.
A Participant's Salary Reduction Agreement shall become effective on
such Participant's first pay period in the month which begins not less than
fifteen (15) days (or such shorter period as the Committee allows) after the
delivery of such Salary Reduction Agreement to the Company; provided, however,
that all Salary Reduction Agreements entered into between the Company and any
Employee before March 1, 1989 shall become effective on March 1, 1989.
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A Participant may elect to change (including an election to completely
suspend or subsequently recommence) the percentage rate of his salary reduction
effective (i) prior to January 1, 1990, only as of the first pay period of any
month and (ii) on or after January 1, 1990, only as of the first pay period of
any calendar quarter, plus, for each Plan Year, one additional election to
change effective as of any pay period. Each such change shall be made by written
notice filed with the Committee at least fifteen (15) days (or such shorter
period as the Committee allows) prior to the first day of such month, quarter
or, with respect to the additional change available in each Plan Year beginning
on or after January 1, 1990, pay period, whichever is applicable. No change in
the percentage of a Participant's salary reduction shall be made at any other
time by the Participant and the salary reduction percentage in force at any time
shall continue in force unless and until changed in accordance with the
provisions of the preceding sentences.
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ARTICLE IV
Contributions Under the Plan
4.01 Tax Deferred Contributions. For each month, the Company shall make
a Tax Deferred Contribution to the Trust on behalf of each Participant who has
entered into a Salary Reduction Agreement equal to the amount specified in said
Salary Reduction Agreement. In addition to the Tax Deferred Contributions made
by the Company pursuant to the preceding sentence, the Company may, in order to
cause the test in Section 6.02(a)(i) or (ii) and/or the test in Section
6.04(a)(i) or (ii) to be satisfied for a Plan Year, make a special Tax Deferred
Contribution to the Trust for such Plan Year, which special Tax Deferred
Contribution shall be in an amount determined by the Company in its sole
discretion and shall be allocated for the benefit of all Participants who are
employed on the last day of such Plan Year and are not Highly Compensated
Employees either (i) in proportion to each such Participant's Compensation for
such Plan Year or (ii) in equal dollar amounts on a per capita basis, as shall
be designated by the Company at the time such special Tax Deferred Contribution
is made. Notwithstanding anything hereinabove to the contrary, Tax Deferred
Contributions shall be subject to the limitations described in Article VI of the
Plan.
4.02 Matching Contributions. For each Plan Year, the Company shall
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make a Matching Contribution to the Trust under the Plan for each eligible
Participant who made Tax Deferred Contributions during any part of such Plan
Year equal to one hundred percent (100%) of the Participant's Tax Deferred
Contributions made during such Plan Year (excluding any special Tax Deferred
Contribution made during such Plan Year pursuant to the second sentence of
Section 4.01); provided, however, that, except as provided in the next paragraph
of this Section 4.02, the Matching Contribution made by the Company under this
Section 4.02 on behalf of any eligible Participant for any Plan Year shall not
exceed two percent (2%) of such Participant's Compensation for such Plan Year;
and provided further that the Company's Matching Contribution for any Plan Year
shall be reduced by the amount of forfeitures available for that Plan Year
pursuant to Section 7.05. A Participant shall be eligible for the Matching
Contribution provided by this Section 4.02 if, and only if, such Participant is
an Employee on the Anniversary Date of such Plan Year.
Notwithstanding the foregoing, the Company may, in order to cause the
test in Section 6.04(a)(i) or (ii) to be satisfied for a Plan Year, increase the
maximum percentage of a Participant's Compensation which it will contribute as a
Matching Contribution pursuant to this Section 4.02 on behalf of all
Participants who are employed on the Anniversary Date of such
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Plan Year and are not Highly Compensated Employees.
4.03 Company Contributions. The Company shall contribute as a Company
Contribution to the Plan on account of each Plan Year such amount, if any, as
may be voted by the Board of Directors in its sole discretion for said Plan
Year.
4.04 Payment of Contributions.
(a) The Tax Deferred Contributions made by the Company on behalf
of each Participant with respect to each month shall be paid into the Trust by
the Company not later than thirty (30) days after the last day of such month and
credited to the Participant's Tax Deferred Account. The special Tax Deferred
Contributions, if any, made by the Company pursuant to the second sentence of
Section 4.01 for any Plan Year shall be paid into the Trust not later than the
date required for such contributions to be deductible for Federal income tax
purposes for said Plan Year and allocated among Participants' Tax Deferred
Accounts pursuant to Section 4.01.
(b) The Matching Contributions made by the Company on behalf of
each Participant with respect to each Plan Year shall be paid into the Trust not
later than the date required for such contributions to be deductible for Federal
income tax purposes for such Plan Year and credited to the Participant's Company
Account.
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(c) The Company Contributions, if any, made by the Company on
behalf of Participants for each Plan Year shall be paid into the Trust not later
than the date required for such contributions to be deductible for Federal
income tax purposes for such Plan Year and shall be allocated among
Participants' Company Accounts pursuant to Section 5.04.
4.05 Reversion of Certain Contributions Made by the Company. All Tax
Deferred, Matching, and Company Contributions made pursuant to Sections 4.01,
4.02, and 4.03 shall be made upon the condition that such contributions are
fully deductible for Federal income tax purposes. In the event that any such
deduction is disallowed in whole or in part, then the Company may direct the
Trustees to return the amount of such contributions (to the extent disallowed)
(decreased by losses attributable to such amount, but not including any earnings
attributable to such amount) to the
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Company at any time within the twelve-month period commencing on the date of
disallowance. In the event that the Company shall make Tax Deferred, Matching
and/or Company Contributions pursuant to Sections 4.01, 4.02 or 4.03 on the
basis of a mistake of fact, the Company may direct the Trustees to return the
amount of such contributions (decreased by losses attributable to such amount,
but not including any earnings attributable to such amount) to the Company at
any time within the twelve-month period commencing on the date of contribution.
In no event shall the return of a contribution hereunder cause any Participant's
accounts to be returned to less than they would have been had the nondeductible
or mistaken amount not been contributed.
4.06 Participant Contributions. Effective on and after January 1, 1987,
no Participant contributions shall be permitted under the Plan.
4.07 Rollover Contributions. Notwithstanding anything to the contrary
elsewhere herein, any Participant may make contributions of all or any part of
(a) any amount received by such Participant from another plan and trust
qualified as an exempt employee benefit plan and trust under Sections 401(a) and
501(a) of the Code or (b) any amount received by such Participant out of an
individual retirement account which consists of a prior rollover contribution
from a qualified employee benefit plan which, in either case, but for such
contribution to the Plan, would have been taxable income to such Participant.
Contributions under this Section 4.07 shall be in cash or such other form of
property as is acceptable to the Trustees and as is necessary to avoid
imposition of tax on the distribution. Any such rollover contribution shall be
credited to a Rollover Account for the benefit of such Participant.
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ARTICLE V
Participants' Accounts;
Allocation of Assets and Contributions;
Participants' Investment Elections
5.01 Participants' Accounts. The Committee shall maintain the following
accounts for each Participant under the Plan: (a) a Tax Deferred Account to
which Tax Deferred Contributions made by the Company (including any special Tax
Deferred Contributions made pursuant to the second sentence of Section 4.01, but
which shall be accounted for separately within such Tax Deferred Account) for
the benefit of such Participant shall be credited; (b) a Company Account to
which Matching Contributions and Company Contributions made by the Company for
the benefit of such Participant shall be credited; (c) a Nondeductible Account
to which nondeductible contributions made by such Participant prior to January
1, 1987 were credited; and (d) a Rollover Account to which rollover
contributions made by the Participant pursuant to Section 4.07 shall be
credited; provided, however, that if a Participant made Rollover Contributions
prior to January 1, 1989 which are invested in a Self-Directed Account, a
separate Rollover Account shall be maintained with respect thereto. The rights
of each Participant to the amounts allocated to his Tax Deferred, Nondeductible
and Rollover
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Accounts shall be fully vested and nonforfeitable at all times.
5.02 Allocation of Tax Deferred Contributions. At the time of payment of
any Tax Deferred Contributions to the Trust (including any special Tax Deferred
Contributions made pursuant to the second sentence of Section 4.01), the Company
shall deliver to the Committee a schedule showing the name of each Participant
and the amount of Tax Deferred Contributions made on his behalf. The schedule
shall also contain such other information as the Committee may reasonably
require for the proper administration of the Plan. Upon receiving all such
schedules with respect to any period ending on a Valuation Date and after the
account balances of the Participants have been adjusted as provided in Section
5.06, the Committee shall credit to the Tax Deferred Account of each Participant
listed on such schedules the amount of Tax Deferred Contributions made to the
Trust on his behalf as shown therein.
5.03 Allocation of Matching Contributions (Including Forfeitures). As
soon as practicable after the end of each Plan Year, the Company shall deliver
to the Committee a schedule showing the name of each Participant who was an
Employee of the Company on the Anniversary Date of such Plan Year and the amount
of Matching Contributions (including forfeitures) made on his behalf pursuant to
Section 4.02. The schedule shall also contain such other
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information as the Committee may reasonably require for the proper
administration of the Plan. Upon receiving such schedule with respect to a Plan
Year and after the account balances of the Participants have been adjusted as of
the Anniversary Date of such Plan Year as provided in Section 5.06, the
Committee shall credit to the Company Account of each Participant listed on such
schedule the amount of the Matching Contribution (including forfeitures) made to
the Trust on his behalf as shown therein.
5.04 Allocation of Company Contributions. The Board of Directors shall,
in its sole discretion, determine the portion of the Company Contribution voted
pursuant to Section 4.03 which shall be allocated to each Company Division (if
any). Such determination shall be made on a basis which does not discriminate in
favor of employees who are Highly Compensated Employees (in accordance with
Section 401(a)(4) of the Code) and which complies with the requirements of
Sections 401(a)(26) and 410(b) of the Code. As soon as practicable after the end
of each Plan Year for which a Company Contribution has been made to the Trust
pursuant to Section 4.03, the Company shall deliver to the Committee a schedule
showing the amount of the Company Contribution for the Plan Year allocated to
each Company Division and the name of each Participant who was an Employee of
the Company
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on the Anniversary Date of such Plan Year, and opposite the name of each such
Participant the amount of Compensation paid to such Participant by the Company
during such Plan Year as well as the Company Division to which such Compensation
was properly allocated. In the event that during any Plan Year a Participant is
employed by more than one Company Division, such Participant's Compensation
shall be equitably allocated among the Company Divisions by which he was
employed in accordance with generally accepted accounting principles. The
schedule shall also contain such other information as the Committee may
reasonably require for the proper administration of the Plan. Upon receiving
such schedule and the total contribution, if any, made by the Company for such
Plan Year, and after the account balances of the Participants have been adjusted
as provided in Section 5.06, the Committee shall allocate a portion of the
Company Contribution to the Plan for the Plan Year allocable to each Company
Division to the Company Account of each Participant which bears the same ratio
to such portion of the total Company Contribution allocated to such Company
Division as the Participant's Compensation allocable to such Company Division
for such Plan Year bears to the total Compensation of all eligible Participants
allocated to such Company Division for such Plan Year.
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5.05 Allocation of Rollover Contributions. After the receipt of any
rollover contribution made by a Participant, the Committee shall credit such
rollover contribution to such Participant's Rollover Account.
5.06 Valuation and Allocation of Assets. The Investment Media shall be
valued by the Trustees, as of each Valuation Date, according to such methods as
the Trustees may reasonably select in order to determine the fair market value
of the assets of each such Investment Medium. As of each Valuation Date, each
account maintained under the direction of the Committee shall be adjusted to
reflect the effect of income collected and accrued, realized and unrealized
profit and losses, expenses, and all other transactions during the applicable
period. All expenses of the Trust which are allocable to a Participant account
or Investment Medium shall be charged to such account or Investment Medium. All
such expenses allocable to an Investment Medium shall be charged against all
Participant accounts in the same proportion as the amount credited to such
Participant account and invested in such Investment Medium bears to the total
amount invested in such Investment Medium. All such expenses allocable to a
Participant account will be charged against the interest of such account
invested in each Investment Medium in the same proportion as each such interest
bears to the total value of the account. Such valuations and
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adjustments of the Participants' accounts shall be made so as to preserve for
each account of each Participant its beneficial interest in each of the
Investment Media. The value of a Participant account as of any Valuation Date
shall be the sum of the interests of the Participant account invested in each
investment Medium as of the Valuation Date for each such Investment Medium which
is coincident with or immediately preceding the Valuation Date as of which the
Participant account is being valued.
5.07 Distributions and Forfeitures. Whenever the Trustees shall make any
distribution to or in behalf of a Participant in accordance with the provisions
of Article VII, or whenever a Participant shall forfeit all or any portion of
his Company Account in accordance with the provisions of Section 7.05, such
Participant's accounts shall be charged with the amount of such distribution or
forfeiture. In the event of any distribution or forfeiture of less than the full
amount standing to the credit of a Participant's accounts, the amount charged
against such Participant's accounts shall be charged against such Participant's
interest in the Investment Media in accordance with administrative policies
established by the Committee, or in the absence of any such policy, on a pro
rata basis. All distributions and forfeitures shall be based upon the value of
the Participant's accounts determined as of
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the Valuation Date next preceding such distribution or forfeiture. The accounts
of any Participant shall continue to be maintained under the Plan and shall
continue to share in the allocation of income, gain, losses, appreciation, and
depreciation of assets pursuant to Section 5.06 until such accounts have been
fully distributed.
5.08 Election of Investments.
(a) Each Participant shall have the right to elect the manner of
investment of the amounts standing to the credit of his accounts among the
Investment Media established under the Trust. By such election, the Participant
shall direct the portion of the aggregate amount then credited, and/or
thereafter to be credited, to his accounts which is to be invested by the
Trustees in each of the Investment Media. The Committee shall maintain records
of account at all times adequately reflecting each Participant's interest in
each of the Investment Media. The Committee may establish such procedures,
forms, minimum investment amounts or other limitations with respect to
investment elections, including without limitation special rules to be
applicable only to Self-Directed Accounts, as it may deem necessary or advisable
for the orderly administration of the Plan.
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(b) Each Participant may revoke his investment election as to
any amounts then standing in his accounts and may make a new investment election
in accordance with this Section 5.08 on a daily basis. In the event that such a
new election causes a transfer of assets from one Investment Media to another,
the transfer shall be made by the Trustees as soon as reasonably possible
thereafter.
(c) To make or change an investment election, each Participant
shall give notice to the Committee, by use of the investment direction system
maintained for such purposes by the Committee or its agent. To be effective,
such an investment election must be in accordance with any and all rules and
regulations established by the Committee for this purpose. Any direction made by
a Participant using the investment direction system maintained by the Committee
or its agent shall be treated as a direction made pursuant to Section 404(c) of
ERISA.
(d) If, at any time, there shall be no investment election in
effect with respect to any amount credited to a Participant's accounts, the
Committee shall direct the Trustees to invest all such amounts in such one or
more of the Investment Media as the Committee shall, in its sole discretion,
select on a uniform basis for all such Participants.
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(e) The Company, the Committee and the Trustees shall have no
responsibility for the investment elections of the Participants and shall incur
no liability on account of investing the assets of the Trust in accordance with
such directions.
(f) For purposes of this Section 5.08, all references to a
Participant shall include a former Participant and the Beneficiary of a deceased
Participant to the extent that such former Participant or Beneficiary has an
interest under the Trust.
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ARTICLE VI
Limitations on Contributions
and Allocations
6.01 Contributions to be Deductible. Tax Deferred Contributions,
Matching Contributions, and Company Contributions under the Plan with respect to
a Plan Year shall not exceed that amount which, when added to the contributions
made by the Company for that Plan Year to all other qualified pension or profit
sharing plans maintained by the Company, equals the maximum amount allowable as
a deduction by the Company pursuant to Section 404 of the Code with respect to
such Plan Year.
6.02 Limitation on Tax Deferred Contributions.
(a) At any time during the Plan Year, the Committee
may direct the Company to suspend or reduce the amount of Tax Deferred
Contributions with respect to any Participant if the Committee determines that
such suspension or reduction is necessary to cause the test in either (i) or, to
the extent not prohibited by regulations promulgated by the Secretary of the
Treasury, (ii) below to be met with respect to the amount of Tax Deferred
Contributions for such Plan Year:
(i) the Actual Deferral Percentage for the Highly
Compensated Employees who are eligible for Tax Deferred Contributions is
not more than the Actual Deferral Percentage for all other Employees who
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are eligible for Tax Deferred Contributions multiplied by 1.25; or
(ii) The excess of the Actual Deferral Percentage
for the Highly Compensated Employees who are eligible for Tax Deferred
Contributions over the Actual Deferral Percentage for all other
Employees who are eligible for Tax Deferred Contributions is not more
than two (2) percentage points, and the Actual Deferral Percentage for
the Highly Compensated Employees who are eligible for Tax Deferred
Contributions is not more than the Actual Deferral Percentage for all
other Employees who are eligible for Tax Deferred Contributions
multiplied by two (2).
For purposes of this subsection (a), "Actual Deferral
Percentage" for a specified group of Employees for a Plan Year shall be the
average of the ratios (calculated separately for each Employee in such group) of
(A) the amount of Tax Deferred Contributions actually paid over to the Trust on
behalf of the Participant for such Plan Year (including that portion of the
special Tax Deferred Contributions made on behalf of such Participant for the
Plan Year pursuant to the second sentence of Section 4.01 and designated by the
Company to be included for purposes of satisfying the tests in this Section
6.02) to (B) the Participant's total compensation for the Plan Year. To the
extent required by Sections 414(q) and 401(k) of the
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Code and any regulations promulgated thereunder, in determining the deferral
percentage of a Highly Compensated Employee described in Section 414(q)(6)(A) of
the Code who has a Family Member, the Tax Deferred Contribution made on behalf
of such Highly Compensated Employee and the total compensation of such Highly
Compensated Employee shall include the Tax Deferred Contributions and total
compensation of his Family Member(s), and such Family Member(s) shall not be
considered a separate Employee for purposes of determining the Actual Deferral
Percentage for any group under the Plan. "Total compensation" for purposes of
this Section 6.02(a) and Section 6.04(a) means, in the case of each Employee and
for each Plan Year, all compensation received by the Employee from the Company
during the Plan Year as reported on Form W-2 for federal income tax withholding
purposes, plus any amounts that would have been received by the Employee from
the Company as total compensation during the Plan Year but for an election under
section 125 or 401(k) of the Code. In no event shall an Employee's total
compensation for any Plan Year exceed, for purposes of this Plan, $200,000
(subject to cost-of-living adjustments made by the Secretary of the Treasury of
his delegate under section 401(a)(17) of the Code).
(b) If, for any Plan Year, the Committee determines that the Tax
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Deferred Contributions made on behalf of Highly Compensated Employees exceed the
limitation set forth in subsection (a) above, the Committee shall direct the
Trustees to reduce the Tax Deferred Contributions of the Highly Compensated
Employees in order of their deferral percentages beginning with the highest of
such percentages, to the extent necessary to cause the Plan to meet the
limitation set forth in subsection (a) above. Any Tax Deferred Contributions so
reduced, together with the income or loss allocable thereto determined in
accordance with Section 401(k) of the Code and the regulations thereunder, shall
be distributed to the Highly Compensated Employee on whose behalf such
contributions were made no later than March 15 of the following Plan Year.
Notwithstanding the foregoing, to the extent provided in regulations issued by
the Secretary of the Treasury, the amount that would otherwise be distributed to
a Participant in accordance with the provisions of this Section 6.02 shall be
reduced by the amount, if any, distributed to the Participant for the year under
Section 6.03.
(c) The Committee shall determine each Plan Year whether the
limitation set forth in subsection (a) above is met and its determination shall
be final and binding on all persons.
6.03 Return of Excess Deferrals. If, during any calendar year, more than
the maximum permissible dollar amount under Section 3.04 of the Plan
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(and Section 402(g) of the Code) is allocated pursuant to one or more cash or
deferred arrangements to a Participant's accounts under this Plan and any other
plan described in Sections 401(k), 408(k), or 403(b) of the Code, the following
provisions shall apply:
(a) No later than March 1 of the next succeeding calendar year,
the Participant may, but is not required to, allocate all or part of such
contributions in excess of the maximum permissible dollar amount ("excess
deferrals") to this Plan. To be effective, such allocation must be in writing,
state that excess deferrals have been made on behalf of such Participant for the
preceding calendar year, and be submitted to the Committee; and
(b) To the extent a Participant allocates excess deferrals in a
timely manner to this Plan pursuant to (a) above, the Committee shall direct the
Trustees to return such excess deferrals, as adjusted for income or losses
attributable thereto determined in accordance with Section 402(g) of the Code
and the regulations thereunder, to the Company for distribution to the
Participant no later than the April 15 following such allocation.
6.04 Limitation on Matching Contributions.
(a) At any time during the Plan Year, the Committee may direct
the Company to suspend or reduce the amount of Matching Contributions
with
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respect to any Participant at any time during the Plan Year, if the Committee
determines that such suspension or reduction is necessary to cause the test in
either (i) or, to the extent not prohibited by regulations promulgated by the
Secretary of the Treasury, (ii) below to be met with respect to such
contributions for such Plan Year:
(i) the Actual Contribution Percentage for the Highly
Compensated Employees who are eligible for Matching Contributions, is
not more than the Actual Contribution Percentage for all other Employees
who are eligible for Matching Contributions, multiplied by 1.25; or
(ii) the excess of the Actual Contribution Percentage
for the Highly Compensated Employees who are eligible for Matching
Contributions, over the Actual Contribution Percentage for all other
Employees who are eligible for Matching Contributions, is not more than
two (2) percentage points, and the Actual Contribution Percentage for
the Highly Compensated Employees who are eligible for Matching
Contributions, is not more than the Actual Contribution Percentage for
all other Employees who are eligible for Matching Contributions,
multiplied by two (2).
For purposes of this subsection (a), the "Actual Contribution
Percentage" for a specified group of Participants for a Plan Year shall be
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the average of the ratios (calculated separately for each Employee in such
group) of (A) the Matching Contributions actually paid over to the Trust on
behalf of the Participant for such Plan Year (including that portion of the
special Tax Deferred Contributions made on behalf of such Participant for the
Plan Year pursuant to the second sentence of Section 4.01 and designated by the
Company to be included for purposes of satisfying the tests in this Section
6.04) to (B) the Participant's total compensation (as defined in Section
6.02(a)) for the Plan Year. To the extent required by Sections 414(q) and 401(m)
of the Code and any regulations promulgated thereunder, in determining the
contribution percentage of a Highly Compensated Employee described in Section
414(q)(6)(A) of the Code who has a Family Member, the Matching Contributions
made on behalf of and the Compensation of such Highly Compensated Employee shall
include the Matching Contributions and total compensation of his Family
Member(s), and such Family Member(s) shall not be considered a separate
Participant for purposes of determining the Actual Contribution Percentage for
any group under the Plan.
(b) If, for any Plan Year, the Committee determines the Matching
Contributions made on behalf of Highly Compensated Employees exceed the
limitation set forth in subsection (a) above, the Committee shall direct the
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Trustees to distribute to the Highly Compensated Employees, in order of their
contribution percentages beginning with the highest of such percentages, the
amount necessary to cause the Plan to meet such limitation for such Plan Year.
All such Matching Contributions together with the income and loss allocable
thereto determined in accordance with Section 401(m) of the Code and the
regulations thereunder, shall be distributed to the Highly Compensated Employee
on whose behalf such contributions were made no later than March 15 of the
following Plan Year.
6.05 Limitations on Allocations. Notwithstanding anything hereinabove to
the contrary, the sum of the amounts credited to the accounts of any Participant
for any Plan Year pursuant to Section 5.02 (dealing with Tax Deferred
Contributions), Section 5.03 (dealing with Matching Contributions), Section 5.04
(dealing with Company Contributions), and this Section 6.05 shall be reduced to
the extent that such amounts would cause the sum of all such contributions
credited to the accounts of such Participant under the Plan for such Plan Year
to exceed the lesser of (a) $30,000 (or, if greater, one-fourth of the defined
benefit dollar limitation set forth in Section 415(b) of the Code, as adjusted
pursuant to Section 415(d) of the Code), or
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(b) twenty-five percent (25%) of such Participant's total compensation
(determined in accordance with Section 415 of the Code and the regulations
thereunder) for such Plan Year.
Any reductions required pursuant to the foregoing sentence shall be made
in the following order:
(i) the Tax Deferred Contributions allocated to such
Participant's Tax Deferred Account pursuant to Section 5.02 shall be
reduced first;
(ii) the Matching Contributions allocated to such Participant's
Company Account pursuant to Section 5.03 shall be reduced next; and
(iii) the Company Contributions allocated to such Participant's
Company Account pursuant to Section 5.04 shall
be reduced last.
In the event any reduction is required pursuant to subsection (i) above, the
amount of such reduction shall be held unallocated by the Trustees and shall be
reapplied in such a way as to reduce succeeding Tax Deferred Contributions on
behalf of such Participant under the Plan. In the event any reduction pursuant
to (ii) or (iii) above is required, the amount of such reduction shall be
allocated and credited pursuant to the procedures set forth in section 5.04
above (with respect to the allocation of Company Contributions) to the Company
Accounts of remaining Participants exclusive
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of any other Participant for whom a reduction for such Plan Year has
been required pursuant to this Section 6.05. Any such reductions which cannot be
so reallocated shall be held unallocated by the Trustees and shall be treated as
if they were a Company Contribution to be allocated under Section 5.04 with
respect to the succeeding Plan Year.
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ARTICLE VII
Payments to or for the Account of
Participants or Terminated Participants
7.01 Restrictions on Payments and Distributions. No money or other
property of the Trust shall be paid out or distributed by the Trustees except
(a) for the purchase or other acquisition of appropriate investments, (b) for
defraying the expenses, including taxes, if any, of administering the Trust as
elsewhere herein provided, (c) for the purpose of making distributions to or for
the account of Participants at the written direction of the Committee in
accordance with the rules set forth below, (d) for the return of Company
contributions pursuant to Section 4.05, (e) for the distribution of amounts
attributable to excess contributions pursuant to Section 6.02(b), 6.03 or
6.04(b) or (f) for the purpose of complying with the terms of a qualified
domestic relations order, within the meaning of Section 414(p) of the Code. All
benefits payable under the Plan shall be paid or provided for solely from the
Trust, and the Company assumes no liability or responsibility therefor.
7.02 Retirement. A Participant shall become fully vested in his accounts
upon attainment of Normal Retirement Age. Upon retirement of a Participant,
which shall be deemed to mean any termination of his employment
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with the Company at or after his Normal Retirement Age, the full amount then
standing to the credit of such Participant's accounts shall be distributed to
him or applied for his benefit as provided in Section 7.07. A Participant who
remains in the active employ of the Company after attaining Normal Retirement
Age shall continue as a Participant for all purposes of the Plan until the date
of his actual retirement.
7.03 Disability Retirement. If the Committee shall determine, on the
basis of such medical evidence as it may reasonably require, that a Participant
is totally incapable of performing his assigned duties with the Company and is
therefore unable to continue in the employ of the Company by reason of the
sickness or disability (whether mental or physical) of such Participant which is
causing such total incapacity, the Committee shall direct the Trustees to apply
the full amount then standing to the credit of such Participant's accounts for
his benefit as provided in Section 7.07. The Committee's determination as to
whether a Participant has become sick or disabled so as to be unable to continue
in the employ of the Company shall be conclusive and binding on all persons.
7.04 Death Benefits.
(a) Upon the death of any Participant who has a
surviving spouse, the Committee shall direct the Trustees to
distribute the full
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amount standing to the credit of such Participant's accounts to the
Participant's surviving spouse, unless the exception provided by paragraph (b)
of this Section 7.04 applies.
(b) The requirement of subsection (a) of this Section 7.04 shall
not apply if (i) the Participant elects to designate a Beneficiary other than
his spouse and his spouse (A) consents in writing to such election, (B) such
election designates a beneficiary which may not be changed without the consent
of the spouse (or the consent of the spouse expressly permits designations by
the Participant without any requirement of further consent by the spouse), and
(C) the spouse's consent acknowledges the effect of such election and is
witnessed by a Plan representative or a notary public, or (ii) if it is
established to the satisfaction of the Committee that the consent of the
surviving spouse could not have been obtained because there is no spouse,
because the spouse cannot be located, or because of other circumstances
prescribed by regulations under Section 417(a)(2) of the Code.
A former spouse shall be treated as a surviving spouse to the
extent benefits must be paid to such former spouse upon the Participant's death
pursuant to a qualified domestic relations order (as defined in Section 414(p)
of the Code), except that no consent shall be required from
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such former spouse with respect to the designation of a Beneficiary to receive
benefits not subject to said order.
(c) If, and only if, a Participant is not married or, if married, is
permitted under this Section 7.04 to designate a Beneficiary other than his
surviving spouse, then such Participant's accounts shall be distributed in
accordance with this subsection (c) of Section 7.04. Such a Participant shall
have the right to designate one or more Beneficiaries, including contingent
Beneficiaries, entitled to receive the amount payable in behalf of such
Participant under the provisions of this Plan in the event of death. Such
designation shall be made in writing in such manner as the Committee shall
determine. A Participant may change such designation from time to time, and may
revoke such designation, provided, however, that any subsequent designation must
meet the requirements of this Section 7.04. Upon the death of any Participant,
the Committee shall direct the Trustees to distribute, for the benefit of such
Participant's Beneficiaries and subject to the provisions of Section 7.08, the
full amount standing to the credit of the Participant's accounts. If a
Participant dies without having designated a Beneficiary, or if none of the
designated Beneficiaries survives the Participant, or if the Committee is in
doubt as to the effective status of a Beneficiary
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designation, payment of any sum that would otherwise have been payable to such
Beneficiary will be made to the first surviving class of the following classes
of successive preference Beneficiaries, all members of such class to share
equally: the Participant's (i) surviving spouse; (ii) surviving issue (including
adopted children and stepchildren), per stirpes; (iii) surviving parents; (iv)
brothers and sisters, in equal shares; and (v) executors and administrators. If
a Beneficiary entitled to receive any amount payable in behalf of a Participant
dies before receiving the entire amount to which such Beneficiary is entitled,
the undistributed balance, together with any income or loss accumulated thereon,
shall be distributed to such Beneficiary's estate in accordance with Section
7.07.
7.05 Termination of Employment Prior to Retirement or
Death.
(a) If any Participant's employment with the Company
terminates under circumstances other than by reason of retirement, disability or
death, as provided for under Section 7.02 through 7.04, he shall be entitled to
a vested benefit equal to the sum of (i) 100% of the amounts standing to the
credit of his Tax Deferred Account, Nondeductible Account and Rollover Account,
plus (ii) that percentage of the amount standing to the credit of his Company
Account, based upon his Years of Vesting Service, which shall be
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determined under Schedule A if the Participant was initially hired by the
Company before January 1, 1987 and under Schedule B if the Participant was
initially hired by the Company after December 31, 1986.
Schedule A Schedule B
---------- ----------
Years Vested Years Vested
of Service Percentage of Service Percentage
---------- ---------- ---------- ----------
Less than 1 0% Less than 3 0%
1 but less than 2 25% 3 or more 100%
2 but less than 3 50%
3 or more 100%
A Participant whose employment with the Company terminates and
who immediately thereafter becomes an employee of an Affiliated Company shall
not be considered to have terminated his employment for purposes of this Section
until his employment with the Affiliated Company subsequently terminates.
The vested benefit determined in accordance with the foregoing
provision shall never be adjusted or altered in any fashion on account of any
Years of Vesting Service which the Participant might complete upon reemployment
with the Company or an Affiliated Company after a Break in Service, except as
provided in Section 7.06.
(b) The determination of the amount to which such terminated
Participant is entitled in accordance with the foregoing rules shall be made
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by the Committee and communicated to the Trustees.
(c) Any amount standing to the credit of a Participant's Company
Account to which he is not entitled at the time of his termination of employment
shall be forfeited by him upon the earlier of the payment of the full amount to
which such Participant is entitled under the Plan or the incurrence of five (5)
Consecutive Breaks in Service by the Participant. For purposes of the preceding
sentence, a terminated Participant who is not entitled to receive any amount
under the Plan shall be deemed to have received the entire amount to which he is
entitled on the date his employment terminates and shall forfeit his entire
Company Account as of that date. At the close of the Plan Year in which any
forfeitures occur, all such forfeited amounts shall be applied to reduce the
Company's Matching Contribution for such Plan Year.
7.06 Reemployment. If a terminated Participant is reemployed by the
Company, he shall again become an active Participant upon reemployment pursuant
to Section 3.03.
If such a reemployed Participant was not 100% vested in his Company
Account under Section 7.05(a) at the time of his prior termination, the
following special provisions shall apply:
(a) If such a terminated Participant is reemployed after
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incurring five (5) consecutive Breaks in Service, he shall have no rights with
respect to any amounts previously forfeited from his Company Account, and any
portion of his Company Account which has not been distributed shall be held in a
separate, fully vested Company Account until such Participant becomes 100%
vested under Section 7.05(a) whereupon it shall be merged with the Company
Account otherwise maintained for him.
(b) If such a terminated Participant is reemployed before
incurring five (5) consecutive Breaks in Service, the full amount, if any, which
was forfeited from his Company Account as a result of his prior termination
shall be restored to his Company Account as of the date of reemployment. If such
terminated Participant had previously received a distribution of all or any part
of the vested portion of his Company Account, the vested portion of his Company
Account shall thereafter be determined by (i) adding the amount previously
distributed to his current Company Account balance, (ii) multiplying the
resulting sum by his current vesting percentage and (iii) subtracting from the
resulting product the amount previously distributed.
7.07 Methods of Payment.
(a) Whenever under this Article VII any amount is
required to
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be distributed or applied for the benefit of any Participant or Beneficiary or
other person, such distribution shall be made by the payment or commencement of
payments under such one or more of the following methods as the Participant or
Beneficiary may elect.
Option A. One lump sum payment in cash.
Option B. Payments in annual periodic installments, in
cash, reasonably nearly equal in amount, over any
period not exceeding fifteen (15) years.
Option C. One lump sum transfer, in kind, to an individual
retirement account (within the meaning of Section
408(a) of the Code).
If a Participant or Beneficiary fails to make an election under this Section
7.07(a), he shall receive his benefit in a single cash payment pursuant to
Option A. Notwithstanding the foregoing, if the amount standing to the credit of
a Participant's accounts does not exceed $3,500, the Participant or Beneficiary
shall automatically receive his benefit in one lump sum payment in cash.
(b) Whenever during any Plan Year the amount standing to the
credit of a Participant's accounts becomes distributable pursuant to Sections
7.02 through 7.05, distribution at such
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retirement, disability, death or termination of employment, as the case may be,
shall be made or commenced within a reasonable time after the latest of (1) such
retirement, disability, death or termination of employment, (2) the
determination of the allocation to which the Participant is entitled under
Section 5.04 with respect to such Plan Year, or (3) if Section 7.08(a) is
applicable to such Participant, the date the Participant consents to a
distribution pursuant to that Section.
7.08 Restrictions on Method and Timing of Payment. Notwithstanding any
provision to the contrary, in order to comply with Sections 401(a)(9),
411(a)(11) and 414(p) of the Code, the following provisions shall apply:
(a) If the sum of a Participant's account balances to be
distributed upon retirement, disability or severance under Section 7.02, 7.03 or
7.05 is greater than $3,500, such account balances shall not be distributed in
whole or in part until the earlier of (i) the date the Participant attains
Normal Retirement Age or (ii) the Participant's death, unless the Participant
consents to such earlier distribution in writing.
(b) In the case of distribution to a Participant, the period of
years selected under Option B shall be such that the requirements set forth in
both (i) and (ii) below are satisfied at the time distribution to such
Participant is to commence.
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(i) No method of payment hereunder may be selected
which would provide for payment to any person during any period longer
than the life expectancy of the Participant or the joint life and last
survivor expectancy of the Participant and his Beneficiary, determined
using attained ages as of the calendar year in which payments commence
and Table V or VI of Treasury Regulation Section 1.72-9.
(ii) If someone other than the Participant's spouse is
designated to receive benefits, then the period of years over which
installment payments are to be paid shall be such that any period of
years remaining as of the calendar year in which the Participant attains
age seventy and one-half (70-1/2) or any subsequent calendar year shall
meet the minimum distribution incidental benefit requirement which shall
be determined in accordance with regulations promulgated under Section
401(a)(9) of the Code.
For purposes of this Section 7.08(b) and Section
7.08(e), a Participant's Beneficiary shall be determined in accordance
with regulations promulgated under Section 401(a)(9) of the Code.
(c) In no event shall the distribution of a Participant's
Accounts, unless the Participant otherwise elects, begin later than the 60th
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day after the close of the Plan Year in which the later of the following events
occurs:
(i) the Participant's sixty-fifth (65th) birthday;
(ii) the tenth (10th) anniversary of the date on which
the Participant first became a Participant, or
(iii) the Participant's termination of service with the
Company (and any Affiliated Company).
(d) In no event shall distribution of benefits to a Participant
begin later than the April 1 next following the calendar year in which such
Participant attains age seventy and one-half (70-1/2) (the "Required
Distribution Date"). Notwithstanding the foregoing, the Required Distribution
Date for any Participant (i) who is not a "five-percent owner" (within the
meaning of Section 416(i)(1)(B)(i) of the Code) at any time during the five Plan
Year period ending in the calendar year in which the Participant attains age
70-1/2 and (ii) who attains age 70-1/2 before January 1, 1988, shall be no
earlier than the April 1 next following the calendar year in which the
Participant terminates employment with the Company.
(e) In the event a Participant dies before his Required
Distribution Date and his surviving spouse is not his Beneficiary, his
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entire interest shall be paid to his Beneficiary in a lump sum no later than
December 31 of the calendar year containing the fifth (5th) anniversary of the
Participant's death; provided, however, that the Participant's Beneficiary may
elect, no later than December 31 of the calendar year following the calendar
year in which the Participant died, to receive installment payments commencing
no later than such date and payable over a period not exceeding the
Beneficiary's life expectancy. If the Participant's Beneficiary is his surviving
spouse, the Participant's entire interest shall be paid to his surviving spouse
in installment payments commencing no later than the December 31 of the calendar
year in which the Participant would have attained age seventy and one-half
(70-1/2) and payable over a period not exceeding the life expectancy of the
surviving spouse, provided, however, that the surviving spouse always has the
right to elect to receive her benefits in a lump sum. If the spouse dies before
said date, subsequent distributions shall be made as if the spouse had been the
Participant. Life expectancy will be calculated in accordance with Treasury
Regulation Section 1.72-9 and regulations promulgated under Section 401(a)(9) of
the Code.
If a Participant dies on or after his Required Distribution Date, the
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Participant's remaining interest in the Plan shall be distributed at least as
rapidly as under the method of distribution being used as of the date of death.
(f) If, and to the extent that, any portion of a Participant's
account balances is payable to a former spouse or dependent pursuant to a
qualified domestic relations order within the meaning of Sections 401(a)(13)(B)
and 414(p) of the Code, the provisions of said order shall govern the
distribution thereof. Such an order may provide for payments to a former spouse
or dependent even though the Participant is still employed by the Company or is
otherwise not eligible for the distribution of benefits under the Plan.
7.09 Withdrawals During Employment.
(a) Upon written notice given to the Committee at least thirty
(30) days (or such shorter period as the Committee allows) in advance of a
Valuation Date, a Participant may withdraw any amount standing to the credit of
his Nondeductible Account and/or Rollover Account as of such Valuation Date.
(b) Upon written notice to the Committee at least thirty (30)
days prior to a Valuation Date, and if the Participant is one hundred percent
(100%) vested in his Company Account and has withdrawn the full
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amount, if any, standing to the credit of his Nondeductible and Rollover
Accounts as provided in subsection (a) above, the Participant may elect to
withdraw from his Company Account an amount not less than the lesser of (i)
$1,000 or (ii) 25% of the amount standing to the credit of his Company Account,
as of such Valuation Date, for one or more of the following purposes:
(i) To satisfy any expense arising as a result of
accident, sickness or disability of the Participant or a
member of his immediate family;
(ii) To purchase a primary residence for the Participant;
(iii) To provide for the education of the Participant or a
member of his immediate family;
(iv) To provide for such other types of financial
emergencies as the Committee may deem appropriate in
accordance with Section 9.05.
(c) Upon written notice to the Committee at least thirty (30)
days (or such shorter period as the Committee allows) prior to a Valuation Date,
a Participant who has not yet attained age fifty-nine and one-half (59-1/2) and
has withdrawn the full amount, if any, standing to the credit of his
Nondeductible, Rollover and, if fully vested, Company Accounts
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as provided in subsections (a) and (b) above, may at any time during his
employment with the Company withdraw all or any portion of the amount
(determined as of such Valuation Date) standing to the credit of his Tax
Deferred Account, excluding any outstanding loan amounts with respect to such
accounts, but only in order, and to the extent necessary, to meet a "Financial
Hardship;" provided, no such withdrawal may exceed the aggregate amount of the
Tax Deferred Contributions (excluding any special Tax Deferred Contributions
made on behalf of such Participant pursuant to the second sentence of Section
4.01) made on his behalf by the Company, reduced by the sum of all prior
withdrawals from such Participant's Tax Deferred Account. The determination that
the Participant is faced with a Financial Hardship and of the amount required to
meet such Financial Hardship which is not reasonably available from other
resources of the Participant shall be made by the Committee in accordance with
uniform and nondiscriminatory standards and policies which shall be adopted by
the Committee and consistently applied to each application for a withdrawal
pursuant to this Section 7.09(c). For purposes of this Section 7.09(c),
"Financial Hardship" shall mean an immediate and heavy financial need which such
Participant is not able to meet from any other reasonably available resources.
In determining that such Participant is not able to
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meet such Financial Hardship from any other sources, the Committee may
reasonably rely upon the written certification of the Participant given in
accordance with the regulations under Section 401(k) of the Code. Subject to the
foregoing and the requirements of Section 401(k) of the Code and any regulations
thereunder, the term "Financial Hardship" shall mean and include the following:
(i) the purchase (excluding mortgage payments) of a
principal residence of the Participant;
(ii) the payment of the tuition for the next semester or
quarter of post-secondary education for the Participant, his spouse,
children, or dependents;
(iii) the medical expenses described in Section 213(d)
of the Code which are incurred by the Participant, his spouse or any
dependent, and which are not covered by insurance; or
(iv) the need to prevent an eviction or mortgage
foreclosure on the Participant's principal residence.
(d) Upon written notice to the Committee at least thirty (30)
days (or such shorter period as the Committee allows) prior to a Valuation Date,
a Participant who is at least fifty-nine and one-half (59-1/2) years old shall
be
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entitled to withdraw all or any portion of the amounts credited to his accounts
under the Plan as of such Valuation Date.
(e) A Participant may specify that a withdrawal under this
Section 7.09 is to be charged to his interest in one or more specific Investment
Media in which the account charged with the withdrawal is invested. Unless so
specified, distribution will be made out of the interests of such account in
each Investment Medium in accordance with the proportion which the interest of
such account in such Investment Medium bears to the total value of such account,
subject however to such restrictions as may be applicable to the particular
Investment Media.
(f) All withdrawals under this Section 7.09 shall be made as
soon as practicable after the Valuation Date next following timely receipt by
the Committee of the Participant's written notice.
7.10 Loans to Participants. Upon written application of a Participant
submitted to the Committee at least thirty (30) days (or such shorter period as
the Committee allows) prior to a Valuation Date, the Committee may direct the
Trustees to lend to such Participant such amount or amounts from his Tax
Deferred Account, as the Committee may determine proper, up to the greater of
(a) fifty percent (50%) of the total aggregate value of such Participant's Tax
Deferred Account (determined as of such Valuation Date) or
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(b) solely for loans made prior to October 19, 1989, $10,000; but only for one
of the purposes enumerated in Section 7.09(c) or to provide for such other
financial contingency as the Committee, in its sole discretion, may deem
appropriate in accordance with Section 9.05. Notwithstanding the foregoing, the
aggregate amount of all outstanding loans, including accrued interest, from the
Plan to a Participant shall not exceed $50,000, reduced by the amount of any
loan repayment made during the one (1) year period ending on the day before the
date on which such loan is to be made. For loans made on or after February 1,
1990, the minimum amount which may be loaned to a Participant under this Section
7.10 shall be $1,000. A Participant may not have more than one loan outstanding
under this Section 7.10 at any given time.
Loans shall be made available to all Participants on a reasonably
equivalent basis, except that the Committee may make reasonable distinctions
based upon credit-worthiness, other obligations of the Participant and other
factors that may adversely affect the ability to assure repayment. The decision
as to whether a loan shall or shall not be made in any case shall rest solely
within the discretion of the Committee, such discretion to be exercised
consistently with the provisions of Section 9.05 and with such
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procedures as the Committee may establish pursuant to this Section 7.10. Loans
approved under this Section 7.10 shall be made as soon as reasonably practicable
after the Valuation Date next following timely receipt by the Committee of the
Participant's written application.
Each such loan shall be made at such reasonable rate of interest as the
Committee may determine, and shall be subject to such other terms and conditions
as the Committee may deem proper, and shall be evidenced by the promissory note
of the Participant and secured by at least fifty percent (50%) of the
Participant's interest in the Plan. Each such loan shall be repaid by such means
as may be authorized by the Committee, shall be amortized over the term of the
loan in level payments made not less frequently than quarterly, and shall be
repaid within five (5) years unless such loan is used to acquire a dwelling unit
which within a reasonable period of time is to be used (determined at the time
the loan is made) as the principal residence of the Participant in which case
the repayment period shall not exceed twenty (20) years.
Each such loan shall be deemed to be an investment made at the direction
of such Participant and shall be credited to a separate investment account for
the borrowing Participant. An amount equal to the principal amount of such loan
when made shall be
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charged to the interests of such Participant's Tax Deferred Account.
A Participant may specify that a loan under this Section 7.10 is to be
charged to his interest in one or more specific Investment Media in which his
Tax Deferred Account is invested. Unless so specified, the loan amounts shall be
made out of the interest of such account in each Investment Medium in accordance
with the proportion which the interest of such account in such Investment Medium
bears to the total value of such account, subject however to such restrictions
as may be applicable to the particular Investment Media.
All interest and loan repayments shall be credited to the Tax Deferred
Account of such Participant and shall be invested, pursuant to such
Participant's investment elections under Section 5.08. All expenses incurred by
the Committee and the Trustees, including reasonable attorneys' fees and court
costs, as a result of a default by a Participant shall be charged against the
Participant's accounts.
If any loan under this Section 7.10 is in default, as determined in
accordance with the procedures established by the Committee, when any part or
all of the amount standing to the credit of a Participant's accounts is to be
distributed to such Participant or his Beneficiary, the Committee shall direct
the Trustees to apply the amount of such distributable amount
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in payment of the entire outstanding loan principal, and any interest
theretofore accrued, before distributing the balance, if any, to the Participant
or his Beneficiary.
7.11 Discharge of Trustees' Obligation to Make Payments. Whenever the
Trustees are required to make any payment or payments to any person in
accordance with the provisions of this Article VII or Article VIII, the
Committee shall notify the Trustees in writing of such person's last known
address as it appears in the Committee's records; and the obligations of the
Trustees and the Committee to make such payment or payments shall be fully
discharged by mailing the same to the address specified by the Committee.
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ARTICLE VIII
Amendment and Termination
8.01 Right to Amend or Terminate. The Company reserves the right at any
time and from time to time to amend this Agreement, or discontinue or terminate
the Plan and Trust by delivering to the Committee and the Trustees a copy of an
amendment or appropriate Board of Directors' resolution of discontinuance or
termination certified by an officer of the Company; provided, however, that
except as provided in Section 8.02, the Company shall have no power to amend or
terminate this Agreement in such manner as would cause or permit (a) any of the
Trust assets to be diverted to purposes other than for the exclusive benefit of
the Employees of the Company or their Beneficiaries; (b) any reduction in the
amount theretofore credited to any Participant; (c) any portion of the Trust
assets to revert to or become the property of the Company; (d) the rights and
responsibilities of the Committee or the Trustees to be increased without their
written consent, and/or (e) the elimination of an optional form of benefit with
respect to amounts credited to a Participant's accounts before the amendment.
8.02 Amendment for Tax Exemption. The Company reserves the right to
amend this Agreement and the Plan and Trust hereunder in such manner as may be
necessary or advisable so that said Trust may continue to qualify as an
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exempt employees' trust under the provisions of the Code; and any such amendment
may be made retroactively.
8.03 Liquidation of Trust in Event of Termination. In the event of
termination or partial termination (within the meaning of Section 411(d)(3) of
the Code) of this Plan and Trust, or complete discontinuance of contributions
thereto by the Company, the rights of all Participants (or in the case of a
partial termination, the rights of Participants affected thereby) to amounts
theretofore credited to all their accounts shall be fully vested and
nonforfeitable. In the event of such termination or discontinuance, the Trustees
shall, subject to the direction of the Committee, hold the assets of the Trust
in accordance with the provisions of the Plan and distribute such assets from
time to time to Participants entitled thereto in accordance with such
provisions.
8.04 Termination of Plan and Trust. This Agreement and the Plan and
Trust hereunder shall in any event terminate whenever all property held by the
Trustees shall have been distributed in accordance with the terms hereof.
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ARTICLE IX
Administration of the Plan
9.01 Named Fiduciaries. The named fiduciaries with respect to the Plan
shall be the Company, the Committee and the Trustees. The Company shall be the
"plan administrator" of the Plan for all purposes of ERISA. The responsibilities
of the named fiduciaries shall be allocated as provided herein, and each such
fiduciary shall have only those responsibilities and obligations that are
specifically imposed upon it by this Trust Agreement or by applicable law. It is
intended that each of the named fiduciaries shall be responsible for the proper
exercise of its own powers, duties, responsibilities, and obligations under the
Plan and shall not be responsible for any act or omission of any other
fiduciary. The Company, the Trustees, and the Committee, as named fiduciaries,
shall be entitled to delegate all or any part of their fiduciary
responsibilities, and obligations to any other person or entity. In the event of
any such delegation, (a) the named fiduciary shall not be liable for any act or
omission of the person to whom the responsibility has been delegated as long as
the selection and retention of such person is prudent and (b) the person to whom
the fiduciary powers and obligations are delegated shall be responsible only for
the proper exercise of the powers, duties,
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responsibilities, and obligations that have been specifically delegated to him.
The responsibilities of the named fiduciaries are:
(i) The Company shall have the sole responsibility to
appoint and remove (in accordance with Section 10.11) the Trustees and
successor Trustees, to appoint and remove or replace the members of the
Committee as herein provided, and shall have such other powers and do
such other things as are herein specifically provided.
(ii) The Trustees shall, except as otherwise specifically
provided in this Agreement, have the sole responsibility for the
investment and control of the assets of the Plan and Trust in
accordance with the terms hereof, and for the appointment, retention,
and/or removal of any Investment Manager.
(iii) The Committee shall have the sole responsibility for
the general administration of the Plan and for carrying out its
provisions. In addition, the Committee shall have such powers and
responsibilities as are herein specifically provided.
The Committee shall conduct its business in accordance with the terms of this
Article IX.
9.02 Appointment of Committee. The Company shall appoint a Committee of
two or more persons, any or all of whom may be officers or employees of
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the Company or any other individuals, to be known as the "Profit Sharing Plan
Committee." Each Trustee shall be deemed to have been appointed a member of the
Committee by the Company if the Company has not appointed any other persons to
be members of the Committee. If the Committee consists of no members other than
the Trustees, all requirements under the Plan that there be a direction,
designation or other communication between the Committee and the Trustees shall
be disregarded. The members of the Committee shall serve at the pleasure of and
may be removed by the Company. Vacancies in the Committee arising by
resignation, death, removal, or otherwise shall be filled by the Company. The
number of members of the Committee shall be as designated by the Company from
time to time. The Trustees shall accept and may rely upon a certification by the
Company as to the number and identity of the individuals comprising the
Committee from time to time.
9.03 Powers of Committee. The Committee shall have all powers and
authority necessary in order to carry out its duties and responsibilities in
connection with the administration of the Plan and Trust as herein provided, and
the Committee may make such rules and regulations as it may deem necessary or
desirable to carry out the provisions of the Plan and Trust. The Committee shall
determine any question arising in the administration,
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interpretation, and application of the Plan and Trust, including any question
submitted by the Trustees on a matter necessary for them properly to discharge
their duties; and the decision of the Committee shall be conclusive and binding
on all persons.
9.04 Action by Committee. The Committee shall act by a majority of its
members at the time in office and such action may be taken by vote at a meeting
or in writing without a meeting. The Committee may by such majority action
authorize any one or more of its members to execute any direction or document or
take any other action on behalf of the Committee, and in such event any one of
the members of the Committee may certify in writing to the Trustees or any other
person the taking of such action and the name or names of the members of the
Committee so authorized, including himself. The execution of any direction,
document, or certificate on behalf of the Committee by any of its members shall
constitute his certification of his authority with respect thereto, and the
Trustees or other person shall be protected in accepting and relying upon any
such direction, document, or certificate and is released from inquiry into the
authority of any of the members of the Committee. Notwithstanding anything to
the contrary elsewhere herein contained, no member of the Committee shall take
any action as a member of the Committee
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with respect to any matter concerning himself as a Participant of the Plan.
9.05 Discretionary Action. Wherever under the provisions of this
Agreement the Committee is given any discretionary power or powers, such power
or powers shall not be exercised in such manner as to cause any discrimination
in favor of or against any Employee or class of Employees.
9.06 Evidence on Which Committee May Act. In taking any action or
determining any fact or question which may arise under this Plan and Trust, the
Committee may, with respect to the affairs of the Company or its Employees, rely
upon any statement by the Company with respect thereto. In the event that any
dispute may arise regarding the payment of any sums or regarding any act to be
performed by the Committee or the Trustees, the Committee may in its sole
discretion direct that such payment be retained or postpone or direct the
postponement of the performance of such act until actual adjudication of such
dispute shall have been made in a court of competent jurisdiction, or until the
Company, the Committee, and/or the Trustees shall have been indemnified against
loss to the satisfaction of the Committee; provided, however, that in the event
of any such dispute, the Committee may rely upon and act in accordance with any
directions received from the Company.
9.07 Employment of Agents. The Committee may employ agents, including,
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but not limited to, custodians, accountants, consultants, or attorneys, to
exercise and perform such of the powers and duties of the Committee hereunder as
the Committee may delegate to them, and otherwise to render such services to the
Committee as the Committee may determine, and the Committee may enter into
agreements setting forth the terms and conditions of such service. The Committee
may appoint an independent public accountant to audit the Plan. The compensation
of such agents shall be an expense chargeable in accordance with Section 9.08.
The Committee shall be fully protected in delegating any such power or duty to
or in acting upon the advice of any such agent, in whole or in part, and except
as may be required by Federal law, shall not be liable for any act or omission
of any such agent, the Committee's only duty being to use reasonable care in the
selection and retention of any such agent.
9.08 Compensation and Expense of Committee. The members of the Committee
shall serve without compensation for services as such. The Company may, but is
not obligated to, pay all or part of the expenses of the Committee. To the
extent not paid by the Company, the expenses of the Committee shall be paid by
the Trust. To the extent any expenses which are paid out of the Trust are
properly allocable to an Investment Medium or to the separate account of a
Participant, they shall be so allocated and
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charged. Such expenses shall include any expenses incident to the functioning of
the Trust, including, but not limited to, attorneys' fees and the compensation
of other agents, accounting and clerical charges, expenses, if any, of being
bonded as required by ERISA, and other costs of administering the Trust.
9.09 Indemnification of Committee Members. The Company shall indemnify
and hold harmless each member of the Committee from and against any and all
claims, losses, damages, expenses (including reasonable attorneys' fees approved
by the Company), and liability (including any reasonable amounts paid in
settlement with the Company's approval), arising from any act or omission of
such member, except when the same is judicially determined to be due to the
willful misconduct of such member.
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ARTICLE X
The Trustees
10.01 Powers of Trustees. It shall be the duty of the Trustees to hold and,
subject to the provisions of this Article, to invest and reinvest the funds of
the Trust and to make distributions therefrom in accordance with the written
directions of the Committee. The Trustees shall have no responsibility for the
correctness under the terms of the Plan of any written directions which they
receive from the Committee. The Trustees shall not be responsible for the
collection of contributions payable to the Trust by the Company pursuant to
Article IV.
10.02 Investments. Except as provided in Section 7.10, the Trustees shall
invest and reinvest the assets of the Trust and keep the same invested, without
distinction between principal and income, subject to the following general
investment policies:
(a) All amounts attributable to a Participant's accounts shall
be invested pursuant to the Participant's investment elections under Section
5.08 in one or more of the Investment Media under the Plan.
(b) All interest, dividends, and other income, as well as any
cash proceeds from the sale or disposition of securities or other property,
received with respect to any Investment Media shall be credited to each
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Participant's accounts invested in such Investment Media and (unless received in
additional shares or investment units of such Investment Media) shall be
invested pursuant to the Participant's investment elections under Section 5.08.
If any distribution with respect to an Investment Media may be received at the
election of the holder of shares or investment units in such Investment Media in
the form of additional shares or investment units or in cash or other property,
the Trustees shall elect to receive it in additional shares or investment units
of the Investment Media.
(c) The Trustees shall have no responsibility for any investment
elections, directions or instructions exercised by Participants hereunder and
shall incur no liability on account of investing or administering the assets of
the Trust in accordance with such elections, directions, or instructions.
Without limitation of the foregoing, if, at any time, there shall be no
investment election in effect with respect to a Participant, the Trustees shall
invest all amounts contributed in respect of such Participant in such one or
more of the Investment Media as the Committee shall, in its sole discretion,
select on a uniform basis for all such Participants.
10.03 Method of Holding, Buying, and Selling Securities. The Trustees may
keep any or all securities or other property in the name of some other
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person, firm, or corporation or in their own name without disclosing fiduciary
capacity. The Trustees may sell at public auction or by private contract,
redeem, or otherwise realize upon any securities, investments, or other property
forming a part of the Trust fund and for such purposes may execute such
instruments and writings and do such things as they shall deem proper.
10.04 Exercise of Rights. The Trustees are hereby authorized to vote upon any
stock, bonds, or other securities of any corporation, association, or trust at
any time comprising the Trust fund or otherwise consent to or request any action
on the part of such corporation, association, or trust, and to give general or
special proxies or powers of attorney, with or without power of substitution,
and to participate in reorganizations, recapitalizations, consolidations,
mergers, and similar transactions with respect to such securities; to deposit
such stocks and other securities in any voting trust, or with any protective or
like committee, or with a trustee, or with depositaries designated thereby; and
generally to exercise any of the powers of an owner with respect to the stock
and other securities and assets comprising the Trust fund which the Trustees
deem to be for the best interests of the Trust to exercise.
10.05 Reliance on Trustees as Owners. No person dealing with the
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Trustees shall be required to take any notice of this Agreement, but all persons
so dealing shall be protected in treating the Trustees as the absolute owners
with full power of disposition of all the monies, securities, and other property
of the Trust, and all persons dealing with the Trustees are released from
inquiry into the decision or authority of the Trustees and from seeing to the
application of monies, securities, and other property paid or delivered to the
Trustees.
10.06 Liquidation of Assets. In the event that cash is required by the
Trustees to effect any action or distribution under this Trust, or to pay any
expenses of this Trust, or for any other reason deemed sufficient by the
Trustees consistent with any outstanding obligations of the Trust, the Trustees
shall take such action as to the disposition of securities or other property
forming a part of the Trust as will provide the amount of cash necessary for
such payments.
10.07 Direction by Committee. Whenever the Committee consists of members
other than or in addition to the Trustees, and whenever the Trustees are
required or authorized to take any action hereunder pursuant to any written
direction or determination of the Committee, such direction or determination
shall be sufficient protection to the Trustees if contained in a writing signed
by any one or more of its members authorized to execute
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documents on behalf of the Committee pursuant to Section 9.04. By such writing
the Committee may ratify, approve, or confirm any action taken by the Trustees,
and upon such ratification, approval, or confirmation the Trustees shall be
protected as though authorization or determination by the Committee had preceded
such action. In the absence of direction by the Committee as to any matter
provided in this Plan, the Trustees may in their discretion take such action as
they deem fit and proper with respect thereto after reasonable attempts to
secure Committee direction. The Trustees may deliver documents to the Committee
by delivering the same to each member of the Committee or by mailing the same,
postage prepaid, addressed to the Committee in care of the Company at its
principal office.
10.08 Records and Accounting. The Trustees shall keep accurate and detailed
records of their transactions hereunder and all their accounts, books, and
records relating thereto shall be open at all reasonable times to the inspection
of the Committee, the Company, and their authorized representatives. The
Trustees shall render in writing, at least once each twelve (12) months,
accounts of their transactions under this Agreement to the Company and each
member of the Committee, and the Committee (or the Company if the Trustees are
the sole members of the Committee) may approve
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such accounts of the Trustees by an instrument in writing delivered to the
Trustees. In the absence of the filing in writing with the Trustees by the
Committee (or the Company if the Trustees are the sole members of the Committee)
of exceptions or objections to any such account within ninety (90) days after
the receipt by the Committee (or the Company if the Trustees are the sole
members of the Committee) of any such account, the Committee (or the Company if
the Trustees are the sole members of the Committee) shall be deemed to have
approved such account; and in such case, or upon the written approval of the
Committee (or the Company if the Trustees are the sole members of the Committee)
of any such account, the Trustees shall be released, relieved, and discharged
with respect to all matters and things set forth in such account. Except as may
otherwise be required by applicable Federal law, no person interested in the
Trust or otherwise other than the Company or the Committee may require an
accounting or bring any action against the Trustees with respect to the Trust
and its actions as Trustees. In any proceeding instituted by the Trustees, the
Company, and/or the Committee with respect to these accounts, only the Company,
the Committee, and the Trustees shall be the necessary parties. The Trustees
shall from time to time make such other reports and furnish such other
information concerning the Trust as the Committee may in
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writing reasonably request or as may be required by applicable Federal law.
10.09 Payment of Taxes. The Trustees shall upon direction of the Company pay
out of the Trust fund any and all taxes of any and all kinds, including without
limitation property taxes and income taxes levied or assessed under existing or
future laws upon or in respect of the Trust or any monies, securities, or other
property forming a part thereof or the income therefrom subject to the terms of
any agreements or contracts made with respect to trust investments which make
other provision for such tax payments. The Trustees may assume that any taxes
assessed on or in respect of the Trust or its income are lawfully assessed
unless the Company shall in writing advise the Trustees that in the opinion of
counsel for the Company such taxes are or may be unlawfully assessed. In the
event that the Company shall so advise the Trustees, the Trustees will, if so
requested in writing by the Company, contest the validity of such taxes in any
manner deemed appropriate by the Company or its counsel; or the Company may
itself contest the validity of any such taxes in the name of the Trustees; and
the Trustees agree to execute all documents, instruments, claims, and petitions
necessary or advisable in the opinion of the Company or its counsel for the
refund, abatement, reduction, or elimination of any such taxes.
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10.10 Trustees' Compensation and Expenses. The Trustees shall not receive
compensation from the Plan for their services as such, but all reasonable
expenses of the Trustees, including those arising under Section 10.09 hereof
may, at the election of the Company, be paid by the Company and unless or until
so paid shall constitute a charge upon the Trust. Such expenses shall include
any expenses incident to the functioning of the Plan, including but not limited
to attorney's fees and the compensation of other agents, accounting and clerical
charges, the cost of obtaining any bonds required by ERISA, and other costs of
administering the Plan or the Trust. To the extent that any expenses (including
those arising under Section 10.09 hereof) which are paid out of the Trust are
properly allocable to an Investment Medium or to the separate account of a
Participant, they shall be so allocated and charged.
10.11 Resignation or Removal of Trustees. Any Trustee acting hereunder may
resign at any time upon thirty (30) days' written notice to the Company, the
Committee and the remaining Trustees, and the Company may remove any Trustee
upon thirty (30) days' written notice to the Trustees and the Committee; but the
Company and such Trustee may by written instrument waive such notice. If any
Trustee shall resign, be removed, or for any other reason cease to be Trustee,
the Company shall appoint a successor Trustee or
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Trustees. Subject to the foregoing provisions, any resignation or removal of the
Trustee or appointment of a new Trustee shall be by instrument in writing and
shall become effective on the date therein specified. Any successor Trustee
shall have the same powers and duties as the succeeded Trustee, subject to such
changes as the Company may then determine. The appointment of any successor
Trustee or Trustees hereunder shall without any separate instrument or
conveyance immediately vest title to the assets of the Trust in such successor
Trustee or Trustees. Upon request of such successor Trustee or Trustees, the
Company and the Trustee ceasing to act shall execute and deliver such
instruments of conveyance and further assurance and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in
such successor Trustee or Trustees all the right, title, and interest of the
retiring Trustee in and to the Trust funds.
10.12 Indemnification of Trustees. The Company shall indemnify and hold
harmless each Trustee from and against any and all claims, losses, damages,
expenses (including reasonable attorneys' fees approved by the Company), and
liability (including any reasonable amounts paid in settlement with the
Company's approval), arising from any act or omission of such Trustee, except
when the same is judicially determined to be due to the willful
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misconduct of such Trustee.
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ARTICLE XI
The Company
11.01 No Contract of Employment. This Trust shall not be construed as
creating any contract of employment between the Company and any Participant,
Employee, or other person, and nothing herein contained shall give any person
the right to be retained in the employ of the Company or otherwise restrain the
Company's right to deal with its employees, including Participants and
Employees, and their hiring, discharge, layoff, compensation, and all other
conditions of employment in all respects as though this Trust did not exist.
11.02 No Contract to Maintain Plan. The Company by the creation of the Plan
does not enter into any agreement to maintain the Plan or to make any future
contributions thereto or reimbursement of expenses incurred hereunder. Each
contribution by the Company shall be voluntary, and the Company reserves the
right to suspend payment of its contributions hereunder, and no party hereto or
Participant or any other person shall have any cause or right of action against
the Company by reason of any failure by the Company to make contributions to the
Trust, or by reason of any action by the Company in terminating the Plan and
Trust.
11.03 Liability of the Company. Subject to its agreement to indemnify
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the members of the Committee and the Trustees, as provided in Sections
9.09 and 10.13, neither the Company nor any person acting in behalf of the
Company shall be liable for any act or omission on the part of any member of the
Committee, on the part of the Trustees, or on the part of any Investment Manager
or for any act performed or the failure to perform any act by any person with
respect to this Agreement, the Plan, or Trust, the Company's only duty being to
use reasonable care in the selection and retention of the Trustees and the
members of the Committee.
11.04 Action by the Company. Whenever under the terms of this Agreement the
Company is permitted or required to take any action, such action shall be taken
by the Board of Directors, or any duly authorized committee thereof, or by any
officer of the Company thereunto duly authorized, by the Board of Directors or
otherwise. In such event, any such officer may certify to the Committee or the
Trustees or any other person the taking of such action and the name or names of
the officers so authorized, including himself or herself. The execution of any
direction, document, or certificate on behalf of the Company by any of its
officers shall constitute a certification of the authority of such officer with
respect thereto, and the Committee, the Trustees, or other person shall be
protected in accepting
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and relying upon any such direction, document, or certificate and are released
from inquiry into the authority of any officer of the Company.
11.05 Successor to Business of the Company. Unless this Plan and Trust be
sooner terminated, a successor to the business of the Company, by whatever form
or manner resulting, may continue the Plan and Trust by executing an appropriate
supplementary agreement and such successor shall ipso facto succeed to all the
rights, powers, and duties of the Company hereunder. The employment of any
Employee who has continued in the employ of such successor shall not be deemed
to have been terminated or severed for any purposes hereunder.
11.06 Dissolution of the Company. If the Company is dissolved by reason of
bankruptcy or insolvency or otherwise, without any provision being made for the
continuation of this Plan and Trust by a successor to the business of the
Company, the Plan and Trust hereunder shall terminate, and the Trustees shall
proceed in the same manner as though the Plan and Trust were being terminated by
the Company as provided in Section 8.03.
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ARTICLE XII
Additional Participating Companies
12.01 Participation. Any subsidiary or affiliate of the Company may, with the
consent of the Company, become a participating employer by action of the board
of directors of such subsidiary or affiliate adopting the Plan and Trust as a
Plan and Trust for the benefit of its employees. Any such additional
participating employer is hereinafter referred to in this Article XII as a
"Participating Subsidiary."
12.02 Effective Date. The participation of any Participating Subsidiary shall
take effect as of the date of its action to adopt the Plan and Trust or such
other date as it may specify with the Company's approval.
12.03 Administration. Each Participating Subsidiary shall be deemed the
"Company" and shall have and exercise all the rights, powers, and duties thereof
with respect to the Plan as applied to itself and its employees and that part of
the Trust which represents accounts of Participants employed by it. Subject to
Section 12.04, each Participating Subsidiary hereby authorizes Xxxxxx Xxxxxxx
Incorporated to exercise on its behalf all such rights, powers, and duties,
including amendment or termination of the Plan, appointment of the Trustees and
the members of the Committee, and serving as the Plan Administrator.
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Each participating employer, including the Company and each Participating
Subsidiary, shall make contributions hereunder on behalf of its employees in
accordance with Article IV. Forfeitures with respect to any Plan Year shall be
applied to reduce the Matching Contributions for such Plan Year of each such
participating employer in proportion to the amount of Matching Contribution
otherwise required of such participating employer pursuant to Section 4.02.
12.04 Termination. If the Plan shall be terminated by any one Participating
Subsidiary, the Trust shall be valued and the accounts of all Participants
adjusted pursuant to Section 5.06 and assets representing the accounts of all
Participants employed by such Participating Subsidiary shall be segregated into
a separate trust and held subject to the provisions of the Plan, and all rights,
powers, and duties of the Company with respect to such separate trust shall be
exercised by such Participating Subsidiary.
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ARTICLE XIII
Top-Heavy Provisions
13.01 General Rule. For any Plan Year for which this Plan is a "top-heavy
plan" as defined in Section 13.03 below, any other provisions of this Plan to
the contrary notwithstanding, this Plan shall be subject to the minimum
contribution provisions set by Section 13.02 and the limitation on contributions
set by Section 13.06.
13.02 Minimum Contribution Provisions. Each Participant who is a non-key
employee (as defined in Section 13.05 below) and who is an Employee as of the
last day of such Plan Year shall be entitled to a minimum contribution which,
when added to the amount of any employer contributions (excluding Tax Deferred
Contributions (other than special Tax Deferred Contributions made pursuant to
the second sentence of Section 4.01) and Matching Contributions made with
respect to Plan Years commencing on or after January 1, 1989) allocated to the
Participant's accounts under this Plan and all other defined contribution plans
maintained by the Company or any Affiliated Company, will cause the sum of all
such contributions to equal the lesser of (a) three percent (3%) of such
Participant's compensation for such Plan Year or (b) the percentage at which
contributions are made for the key employee (as defined in Section 13.04 below)
for whom
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such percentage is the highest for such Plan Year; provided, if such
Participant is also a non-key employee covered under a defined benefit plan
maintained by the Company or an Affiliated Company, such Participant shall be
entitled to a minimum benefit under such defined benefit plan instead of the
minimum contribution described in this Section 13.02. For purposes of this
Section 13.02, "compensation" shall be determined within the meaning of Section
415 of the Code; provided, however, that in no event shall a Participant's
compensation exceed $200,000 for any Plan Year (or such larger amount as the
Secretary of the Treasury may determine for such Plan Year under Section
401(a)(17) of the Code). In determining the "compensation" of a Participant for
purposes of the limitation described in the preceding sentence for any Plan
Year, the rules of Section 414(q)(6) of the Code shall apply, except that in
applying such rules the term "family" shall include only the spouse of the
Participant and any lineal descendants of the Participant who have not attained
age nineteen (19) before the close of such Plan Year.
13.03 Top-Heavy Plan Definition. This Plan shall be a "top- heavy plan" for
any Plan Year if, as of the determination date (as defined in Section 13.03(a)
below), the sum of all accounts under the Plan for Participants (including
former Participants but excluding the accounts of Employees who
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have not performed any services for the Company at any time during the five (5)
year period ending on the determination date) who are "key employees" (as
defined in Section 13.05 below) exceeds sixty percent (60%) of the sum of all
accounts under the Plan for all Participants (excluding the accounts of former
"key employees" and of Employees who have not performed any services for the
Company at any time during the five (5) year period ending on the determination
date) unless the Plan is part of an aggregation group or if this Plan is part of
an aggregation group (as defined in Section 13.03(b) below) which for such Plan
Year is a "top-heavy group" (as defined in Section 13.03(c) below). Solely for
purposes of this Section 13.03, a Participant's account shall include any
distribution made in the five (5) year period ending on the determination date,
and any contribution due but unpaid as of the determination date.
(a) "Determination date" means for any Plan Year the last day of
the immediately preceding Plan Year; provided, the determination date" for the
first Plan Year shall be the last day of such first Plan Year. If two or more
plans are being aggregated, they shall be be aggregated by adding together the
results for each plan as of the determination dates for such plans that fall
within the same calendar year.
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(b) "Aggregation group" means the group of plans, if any, that
includes the group of plans that are required to be aggregated and, if the
Committee so elects, the group of plans that are permitted to be aggregated.
(i) The group of plans that are required to be aggregated
(the "required aggregation group") includes:
(A) each plan (including any terminated plan)
of the Company and of any Affiliated Company in which a "key
employee" is a member, and
(B) each other plan of the Company and any
Affiliated Company which enables a plan in which a key employee
is a member to meet the requirements of either Section
401(a)(4) or Section 410 of the Code.
(ii) The plans that are permitted to be aggregated (the
"permissive aggregation group") include any plan that is not part of the
"required aggregation group" that the Committee certifies as
constituting a plan within the "permissive aggregation group." Such
plans may be added to the "permissive aggregation group" only if, after
the addition, the "aggregation group" as a whole continues to meet the
requirements of both Section 401(a)(4) and Section 410 of the Code.
(c) "Top-heavy group" means the "aggregation group,"
if, as of
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the applicable determination date, the sum of the present value of the accrued
benefits for "key employees" under all defined benefit plans included in the
"aggregation group" plus the aggregate of the accounts of "key employees"
(excluding the accounts of Employees who have not performed any services for the
Company at any time during the five (5) year period ending on the determination
date) under all defined contribution plans included in the "aggregation group"
exceeds sixty percent (60%) of the sum of the present value of the accrued
benefits for all employees under all such defined benefit plans plus the
aggregate accounts for all Employees under such defined contribution plans
(excluding the accounts of former "key employees" and of Employees who have not
performed any services for the Company at any time during the five-year period
ending on the determination date). Solely for purposes of this subsection (c),
the accrued benefits of "non-key employees" shall be determined under (i) the
method, if any, that uniformly applies for accrual purposes under all defined
benefit plans maintained by the Company and any Affiliated Company, or (ii) if
there is no such method, as if such benefit accrued not more rapidly than the
slowest accrual rate permitted under Section 411(b)(1)(C) of the Code.
(d) In determining whether this Plan constitutes a "top-heavy
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plan," the Committee shall follow the rules set forth in Section 416 of the Code
and regulations pertaining thereto.
13.04 Key Employee. The term "key employee" means any Employee (and any
Beneficiary of an Employee) under this Plan who is a "key employee" as
determined in accordance with Section 416(i)(1) of the Code.
13.05 Non-Key Employee. The term "non-key employee" means
any Employee (and any Beneficiary of an Employee) who is a "non-
key employee" as determined in accordance with Section 416(i)(2)
of the Code.
13.06 Limitation on Contributions. For each Plan Year that the Plan is a
top-heavy plan, 1.0 shall be substituted for 1.25 as the multiplicand of the
dollar limitation in determining the denominator of the defined benefit plan
fraction and of the defined contribution plan fraction for purposes of Section
415(e) of the Code.
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ARTICLE XIV
Miscellaneous
14.01 Spendthrift Provision. It is a condition of the Plan, to which all
rights of each Participant shall be subject, that no right or interest of any
Participant in the Plan or in the Trust shall be assignable or transferable in
whole or in part, either directly or indirectly, by operation of law or
otherwise, including but not by way of limitation, execution, levy, garnishment,
attachment, pledge, bankruptcy, or in any other manner, but excluding devolution
by death or acquisition by a guardian or committee of a mental incompetent, and
no rights or interest of any Participant in the Plan or in the Trust shall be
liable for or subject to any obligation or liability of such Participant except
obligations of a Participant under a qualified domestic relations order within
the meaning of Section 414(p) of the Code or obligations to the Trust pursuant
to Section 7.06.
14.02 Appointment of Person to Receive Payment. If a Participant or
Beneficiary entitled to receive any benefits hereunder is a minor or is deemed
by the Company or is adjudged to be legally incapable of giving valid receipt
and discharge for such benefits, they will be paid to such persons as the
Committee may designate or to the duly appointed guardian. In the
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event any amount shall become payable hereunder to any person (or the
Beneficiary or estate of such person), and if after written notice from the
Trustees mailed to such person's last known address as shown on the Committee's
records, such person or personal representative shall not have presented himself
to the Trustees or notified the Trustees in writing of his address within one
(1) year after the mailing of such notice, then the Committee shall in its
discretion appoint one or more of the spouse and blood relatives of such person
to receive such amount, including any amount thereafter becoming due to such
person (or estate), in the proportions determined by them. Any action of the
Committee hereunder shall be binding and conclusive upon all persons.
14.03 Construction. In any question of interpretation or other matter of
doubt, the Trustees, the Committee, and the Company may rely upon the opinion of
counsel for the Company or any other attorney at law designated by the Company
with the approval of the Trustees. The provisions of this Agreement shall be
construed, administered, and enforced according to the laws of the United States
and, to the extent permitted by such laws, by the laws of the Commonwealth of
Massachusetts. All contributions to the Trust shall be deemed to be made in the
Commonwealth of Massachusetts.
14.04 Impossibility of Performance. In case it becomes impossible for
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the Company, the Committee, or the Trustees to perform any act under this Plan
and Trust, that act shall be performed which in the judgment of the Committee
will most nearly carry out the intent and purpose of this Plan and Trust. All
parties to this Agreement or in any way interested in this Plan and Trust shall
be bound by any acts performed under such condition.
14.05 Definition of Words. Feminine or neuter pronouns shall be substituted
for those of the masculine form, and the plural shall be substituted for the
singular, in any place or places herein where the context may require such
substitution or substitutions.
14.06 Titles. The titles of articles and sections are included only for
convenience and shall not be construed as a part of this Agreement or in any
respect affecting or modifying its provisions.
14.07 Merger or Consolidation. In the event that this Plan is merged with or
consolidated with any other plan, or the assets or liabilities accrued under
this Plan are transferred to any other plan, each Participant's benefit under
such other plan shall be at least as great immediately after such merger,
consolidation, or transfer (if such plan were then to terminate) as the benefit
to which such Participant would have been entitled under this Plan immediately
before such merger, consolidation, or
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transfer (if the Plan were then to terminate).
14.08 Claims Procedure. In accordance with Section 503 of the ERISA and the
regulations of the Secretary of Labor prescribed thereunder,
(a) All claims for benefits under this Plan shall be filed in
writing with the Committee in accordance with such procedures as the Committee
shall reasonably establish;
(b) The Committee shall, within ninety (90) days of submission
of a claim, provide adequate notice in writing to any claimant whose claim for
benefits under the Plan has been denied, setting forth the specific reasons for
such denial and such other information as is required by said regulations
written in a manner calculated to be understood by the claimant;
(c) The Committee shall, upon written request by a claimant
within sixty (60) days of the receipt of the notice that the claim has been
denied, afford a reasonable opportunity to such claimant for a full and fair
review by the Committee of the decision denying the claim; and
(d) The Committee shall, within sixty (60) days of receipt of a
request for a review, render a written decision on its review setting forth the
specific reasons for such decision, written in a manner to be understood by the
claimant.
14.09 Special Provisions for Certain Leased Employees. A "leased
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employee" shall receive credit for Hours of Service for the entire period during
which he is a leased employee of the Company as if he were an Employee of the
Company; provided, however, a leased employee shall not be an Employee eligible
to participate in the Plan as long as he remains a leased employee. For purpose
of this Section 14.09, the term leased employee means any person (a) who is not
an Employee of the Company or an Affiliated Company and (b) who pursuant to an
agreement between the Company or an Affiliated Company and any other person (a
"leasing organization") has performed services for the Company or an Affiliated
Company of a type historically performed by employees in the business field of
the Company or Affiliated Company on a substantially full-time basis for a
period of at least one (1) year. Notwithstanding the foregoing, if leased
employees constitute less than twenty percent (20%) of the Company's or
Affiliated Company's non-highly compensated work force within the meaning of
Section 414(n)(5) of the Code, a person who is covered by a money purchase
pension plan maintained by the leasing organization which provides a non-
integrated employer contribution rate of at least ten percent (10%) of
compensation, immediate participation, and full vesting shall not be considered
a leased employee.
14.10 Effective Date of Amendment and Restatement. The effective date
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of this amendment and restatement shall be January 1, 1989, except as otherwise
specifically provided herein, and shall apply only to Employees credited with at
least one (1) Hour of Service on or after said date. Notwithstanding the
foregoing, the effective date of Sections 3.04, 4.01 and 4.02 shall be March 1,
1989 and the effective date of the changes contained in Section 13.03 shall be
January 1, 1985.
14.11 Execution of Agreement. This Agreement may be executed in any number of
counterparts and each fully executed counterpart shall be deemed an original.
IN WITNESS WHEREOF the Company, by its duly authorized officer, and the
Trustees have caused these presents to be signed and in the case of the Company,
its corporate seal affixed, this 14th day of December, 1990.
XXXXXX XXXXXXX INCORPORATED
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
Title: Executive Vice President/Secretary
TRUSTEES:
/s/ Xxxxxxx X. Xxxx
-----------------------------
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Xxxxxxx X. Xxxx
/s/ Xxxxxxx Xxxxxx
----------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxx X. X'Xxxxxx
----------------------
Xxxxxx X. X'Xxxxxx
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PROFIT-SHARING RETIREMENT PLAN
FOR EMPLOYEES OF XXXXXX XXXXXXX INCORPORATED
1992 Amendment
A. The Profit-Sharing Retirement Plan for Employees of Xxxxxx Xxxxxxx
Incorporated (the "Plan"), originally effective January 1, 1955 and most
recently amended and restated in its entirety effective January 1, 1989, is
hereby amended as follows:
1. The name of the Plan is changed to, and Section 2.19 of the Plan is
amended to define the word "Plan" to mean the "Xxxxxx Xxxxxxx Incorporated
Profit Sharing Retirement Plan."
2. Section 7.07 is hereby amended by adding the following new paragraph
at the end thereof:
"(c) To the extent required by Section 401(a)(31) of the Code,
effective for distributions made on or after January 1, 1993, if a
distributee of any "eligible rollover distribution" from the Plan elects to
have such distribution paid directly to an eligible retirement plan and
specifies the "eligible retirement plan" to which such distribution is to
be paid (in such form and at such time as the Committee may prescribe) such
distribution shall be made in the form of a direct trustee-to-trustee
transfer to the "eligible retirement plan" so specified. The terms in the
preceding sentence that are in quotation marks shall have the relevant
meanings prescribed by Section 401(a)(31)."
3. Section 7.09(b) of the Plan is hereby amended to read as follows:
"(b) Upon written notice to the Committee at least thirty (30) days
prior to a Valuation Date, and if the Participant is one hundred percent
(100%) vested in his Company Account and has withdrawn the full amount, if
any, standing to the credit of his Nondeductible and Rollover Accounts as
provided in subsection (a) above, the Participant may elect to withdraw
102
from his Company Account an amount not less than the lesser of (i) $1,000
or (ii) 25% of the amount standing to the credit of his Company Account,
as of such Valuation Date, for one or more of the following purposes (and
to pay the amount of any taxes reasonably anticipated to result from such
a withdrawal):
(i) the purchase (excluding mortgage payments) of a
principal residence of the Participant;
(ii) the payment of the tuition for the next twelve months of
post-secondary education for the Participant, his spouse, children,
or dependents;
(iii) the payment of medical expenses described in Section
213(d) of the Code which are incurred by the Participant, his
spouse, children, or dependents, and which are not covered by
insurance;
(iv) the need to prevent an eviction or mortgage foreclosure
on the Participant's principal residence; or
(v) to provide for such other types of financial emergencies
as the Committee may deem appropriate in accordance with Section
9.05."
4. The first sentence of Section 7.09(c) of the Plan is hereby amended
by deleting the words "to meet a 'Financial Hardship;' provided" and inserting
in lieu thereof the words "to meet a 'Financial Hardship' and to pay the amount
of any taxes reasonably anticipated to result from such a withdrawal; provided".
5. Subsection 7.09(c)(ii) of the Plan is hereby amended to read as
follows:
"(ii) the payment of tuition for the next twelve months of
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post-secondary education for the Participant, his spouse, children,
or dependents;"
6. Section 7.10(a) of the Plan is hereby amended to read as follows:
"(a) fifty percent (50%) of the total aggregate value of such
Participant's Tax Deferred and Rollover Accounts (determined as of such
Valuation Date) or".
7. Section 10.04 of the Plan is hereby amended to read as follows:
"10.04 Exercise of Rights.
(a) Subject to paragraph (b) below, the Trustees are hereby
authorized to vote upon any stock, bonds, or other securities of any
corporation, association, or trust at any time comprising the Trust fund
or otherwise consent to or request any action on the part of such
corporation, association, or trust, and to give general or special proxies
or powers of attorney, with or without power of substitution, and to
participate in reorganizations, recapitalizations, consolidations,
mergers, and similar transactions with respect to such securities; to
deposit such stocks and other securities in any voting trust, or with any
protective or like committee, or with a trustee, or with depositaries
designated thereby; and generally to exercise any of the powers of an
owner with respect to the stock and other securities and assets comprising
the Trust fund which the Trustees deem to be for the best interests of the
Trust to exercise.
(b) Notwithstanding paragraph (a) above, each Participant shall
have the power to vote, or otherwise act with respect to, the shares in
any Investment Media which are sponsored and/or managed by the Company or
any Affiliated Company that are held by the Trustees for the benefit of
such Participant. Such shares shall be voted, or such other action shall
be taken with respect thereto, in accordance with the Participants'
instructions except as may otherwise be required by applicable law. To
facilitate such right, the Trustees shall have delivered to each
Participant a copy of all proxies, notices, and other relevant information
which are distributed to shareholders of such Investment Media generally
and the Trustees shall establish such procedures for the collection of
Participants' instructions with respect to voting, or taking action with
respect to, such shares and the timely
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transmission of such instructions as they shall determine to be
appropriate. Any such shares with respect to which voting instructions
have been sought but have not been timely received shall not be voted."
B. The effective date of items 1, 3, 4 and 5 of Section A above is January 1,
1992, the effective date of item 2 of Section A above is January 1, 1993, and
the effective date of item 6 of Section A above is December 1, 1992.
C. Said Plan, as so amended, is in all other respects hereby confirmed.
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XXXXXX XXXXXXX INCORPORATED
Action by Unanimous Written Consent
The undersigned, being all of the members of the Board of Directors of
Xxxxxx Xxxxxxx Incorporated (the "Corporation"), do hereby adopt the following
resolution by action in writing without a meeting:
RESOLVED, the Xxxxxx Xxxxxxx Incorporated Profit Sharing Retirement
Plan (the "Plan"), as amended and restated effective January 1, 1989 and
subsequently amended, is hereby further amended as follows:
1. Section 4.07 is hereby amended by adding the following to the end
thereof.
"Notwithstanding the foregoing, rollover contributions made by a
Participant on or after May 1, 1994, shall be credited to such
Participant's Tax Deferred Account."
2. The first sentence of Section 5.01 is hereby amended to read as
follows:
"The Committee shall maintain the following accounts for each
Participant under the Plan: (a) a Tax Deferred Account to which Tax
Deferred Contributions made by the Company (including any special Tax
Deferred Contributions made pursuant to the second sentence of Section
4.01, but which shall be accounted for separately within such Tax
Deferred Account) for the benefit of such Participant and rollover
contributions made by the Participant pursuant to Section 4.07 on or
after May 1, 1994 shall be credited; (b) a Company Account to which
Matching Contributions and Company Contributions made by the Company
for the benefit of such Participant shall be credited; (c) a
Nondeductible Account to which nondeductible contributions made by such
Participant prior to January 1, 1987 were credited; and (d) a Rollover
Account to which rollover contributions made by the Participant
pursuant to Section 4.07 prior to May 1, 1994, shall be credited;
provided, however, that if a Participant made rollover contributions
prior to January 1, 1989 which are invested in a Self-Directed Account,
a separate Rollover Account shall be maintained with respect thereto."
3. Section 5.05 is hereby amended by adding the following to the end
thereof:
"Notwithstanding the foregoing, rollover contributions made by a
Participant on or after May 1, 1994 shall be credited to such
Participant's Tax Deferred Account."
4. Section 7.09(c) is hereby amended by adding the following sentence
immediately following the first sentence thereto:
"Notwithstanding the foregoing, no such withdrawal may exceed the
aggregate amount of the Tax Deferred Contributions (excluding any
special Tax Deferred Contributions made on behalf of such Participant
pursuant to the second sentence of Section 4.01) and any rollover
contributions made to such Participant's Tax Deferred Account on or
after May 1, 1994, reduced by the sum of all prior withdrawals from
such Participant's Tax Deferred Account."
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RESOLVED, the effective date of this Amendment is May 1, 1994.
RESOLVED, said Plan, as so amended, is in all other respects hereby
confirmed.
IN WITNESS WHEREOF, the undersigned have executed this Action By
Unanimous Written Consent by affixing their respective signatures hereto, all as
of this 28th day of April, 1994.
/s/ Xxxxx X. Xxxx /s/ Xxxxxxxx X. Xxxxxxxxx
----------------------------- -----------------------------
Xxxxx X. Xxxx Xxxxxxxx X. Xxxxxxxxx
/s/ Xxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxxxxxxx
----------------------------- -----------------------------
Xxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxx
-----------------------------
Xxxxxx X. Xxxxxx
- 2 -
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XXXXXX XXXXXXX INCORPORATED
PROFIT SHARING RETIREMENT PLAN
December 1994 Amendment
A. The XXXXXX XXXXXXX INCORPORATED PROFIT SHARING RETIREMENT PLAN originally
effective January 1, 1955, as subsequently amended, is hereby further amended,
as follows:
1. Section 2.10 is hereby amended, effective January 1, 1994, by adding
the following to the end thereof.
"In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for
Plan Years beginning on or after January 1, 1994, the annual
Compensation of each employee taken into account under the Plan shall
not exceed the OBRA'93 annual compensation limit. The OBRA'93 annual
compensation limit is $150,000, as adjusted by the Commissioner for
increases in the cost of living in accordance with Section
401(a)(17)(B) of the Code. The cost-of-living adjustment in effect for
a calendar year applies to any period, not exceeding 12 months,
beginning in such calendar year over which compensation is determined
(determination period). If a determination period consists of fewer
than 12 months, the OBRA'93 annual compensation limit will be
multiplied by a fraction, the numerator of which is the number of
months in the determination period, and the denominator of which is 12.
For Plan Years beginning on or after January 1, 1994, any reference in
this Plan to the limitation under section 401(a)(17) of the Code shall
mean the OBRA'93 annual Compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into
account in determining an employee's benefits accruing in the current
Plan Year, the Compensation for that prior determination period is
subject to the OBRA'93 annual Compensation limit in effect for that
prior determination period. For this purpose, for determination periods
beginning before the first day of the first Plan Year beginning on or
after January 1, 1994, the OBRA'93 annual compensation limit is
$150,000."
2. Section 6.02(a) is hereby amended, effective January 1, 1994, by
adding the following at the end thereof:
"In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for
Plan Years beginning on or after January 1, 1994, the annual
Compensation of each employee taken into account under the Plan shall
108
not exceed the OBRA '93 annual compensation limit. The OBRA '93 annual
compensation limit is $150,000, as adjusted by the Commissioner for
increases in the cost of living in accordance with Section
401(a)(17)(B) of the Code. The cost-of-living adjustment in effect for
a calendar year applies to any period, not exceeding 12 months,
beginning in such calendar year over which compensation is determined
(determination period). If a determination period consists of fewer
than 12 months, the OBRA '93 annual compensation limit will be
multiplied by a fraction, the numerator of which is the number of
months in the determination period, and the denominator of which is 12.
For Plan Years beginning on or after January 1, 1994, any reference in
this Plan to the limitation under section 401(a)(17) of the Code shall
mean the OBRA '93 annual Compensation limit set forth in this
provision.
If Compensation for any prior determination period is taken into
account in determining an employee's benefits accruing in the current
Plan Year, the Compensation for that prior determination period is
subject to the OBRA '93 annual Compensation limit in effect for that
prior determination period. For this purpose, for determination periods
beginning before the first day of the first Plan Year beginning on or
after January 1, 1994, the OBRA '93 annual compensation limit is
$150,000."
3. Section 7.07(a) is hereby amended, effective January 1, 1989, by
deleting the last sentence thereof in its entirety.
4. Section 7.07(c) is hereby amended, effective January 1, 1993, by
adding the following language at the end thereof:
"Notwithstanding the foregoing, if a distribution is one to which
Sections 401(a)(11) and 417 of the Code do not apply, such
distributions may commence less than 30 days after the notice required
under Section 1.411(a)-11(c) of the Income Tax Regulations is given,
provided that:
a) the Committee clearly informs the Participant that the
Participant has a right to a period of at least 30 days after
receiving the notice to consider the decision of whether or
not to elect a distribution (and, if applicable, a particular
distribution option), and
b) the Participant, after receiving the notice, affirmatively
elects a distribution.
5. Section 7.08(a) is hereby amended, effective January 1, 1989, to
read as follows:
"(a) A Participant's account balances to be distributed upon
retirement,
2
109
disability or severance under Section 7.02, 7.03 or 7.05 shall not be
distributed in whole or in part until the earlier of (i) the date the
Participant attains Normal Retirement Age or (ii) the Participant's
death, unless the Participant consents to such earlier distribution in
writing."
6. Section 13.02 is hereby amended, effective January 1, 1994, by
adding the following to the end thereof:
"In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for
Plan Years beginning on or after January 1, 1994, the annual
Compensation of each employee taken into account under the Plan shall
not exceed the OBRA '93 annual compensation limit. The OBRA '93 annual
compensation limit is $150,000, as adjusted by the Commissioner for
increases in the cost of living in accordance with Section
401(a)(17)(B) of the Code. The cost-of-living adjustment in effect for
a calendar year applies to any period, not exceeding 12 months,
beginning in such calendar year over which compensation is determined
(determination period). If a determination period consists of fewer
than 12 months, the OBRA '93 annual compensation limit will be
multiplied by a fraction, the numerator of which is the number of
months in the determination period, and the denominator of which is 12.
For Plan Years beginning on or after January 1, 1994, any reference in
this Plan to the limitation under section 401(a)(17) of the Code shall
mean the OBRA '93 annual Compensation limit set forth in this
provision.
If Compensation for any prior determination period is taken into
account in determining an employee's benefits accruing in the current
Plan Year, the Compensation for that prior determination period is
subject to the OBRA '93 annual Compensation limit in effect for that
prior determination period. For this purpose, for determination periods
beginning before the first day of the first Plan Year beginning on or
after January 1, 1994, the OBRA '93 annual compensation limit is
$150,000."
B. Except as so amended, the Plan in all other respects, is hereby
confirmed.
IN WITNESS WHEREOF, these presents have been signed and sealed for and
on behalf of the Employer by its duly authorized officer this 23rd day of
December, 1994.
3
110
XXXXXX XXXXXXX INCORPORATED
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Secretary
4
111
XXXXXX XXXXXXX INCORPORATED
PROFIT SHARING RETIREMENT PLAN
November 1995 Amendment
A. The XXXXXX XXXXXXX INCORPORATED PROFIT SHARING RETIREMENT
PLAN originally effective January 1, 1955, and most recently amended and
restated effective January 1, 1989, is hereby further amended effective January
1, 1995, as follows:
1. Section 5.04 is hereby amended to read as follows:
"5.04 Allocation of Company Contributions. As soon as practicable
after the end of each Plan Year for which a Company Contribution has been
made to the Trust pursuant to Section 4.03, the Company shall deliver to
the Committee a schedule showing the amount of the Company Contribution
for the Plan Year and the name of each Participant who was an Employee of
the Company on the Anniversary Date of such Plan Year, and opposite the
name of each such Participant the amount of Compensation paid to such
Participant by the Company during such Plan Year. The schedule shall also
contain such other information as the Committee may reasonably require for
the proper administration of the Plan. Upon receiving such schedule and
the total contribution, if any, made by the Company for such Plan Year,
and after the account balances of the Participants have been adjusted as
provided in Section 5.06, the Committee shall allocate a portion of the
Company Contribution to the Plan for the Plan Year to the Company Account
of each Participant which bears the same ratio to such portion of the
total Company Contribution as the Participant's Compensation for such Plan
Year bears to the total Compensation of all eligible Participants for such
Plan Year."
B. Except as so amended, the Plan in all other respects, is hereby confirmed.
IN WITNESS WHEREOF, these presents have been signed and sealed for and on
behalf of the Employer by its duly authorized officer this 4th day of
April, 1996.
XXXXXX XXXXXXX INCORPORATED
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxxx
Chairman/Chief Executive Officer
112
XXXXXX XXXXXXX INCORPORATED
PROFIT SHARING RETIREMENT PLAN
October 1996 Amendment
A. The XXXXXX XXXXXXX INCORPORATED PROFIT SHARING RETIREMENT
PLAN originally effective January 1, 1955, and most recently amended and
restated effective January 1, 1989, is hereby further amended effective as of
October 14, 1996, as follows:
1. Section 7.10 is hereby amended in its entirety to read as follows:
"7.10 Loans to Participants. Upon written application of a
Participant submitted to the Company at least thirty (30) days (or such
shorter period as the Committee allows) prior to a Valuation Date, the
Committee may direct the Trustees to lend to such Participant such amount
or amounts from his accounts under the Plan up to fifty percent (50%) of
the total aggregate value of the vested portion of such Participant's
accounts (determined as of such Valuation Date). Notwithstanding the
foregoing, the aggregate amount of all outstanding loans, including
accrued interest, from the Plan to a Participant shall not exceed $50,000,
reduced by the amount of any loan repayment made during the one (1) year
period ending on the day before the date on which such loan is to be made.
The minimum amount which may be loaned to a Participant under this Section
7.10 shall be $1,000. A Participant may not have more than two loans
outstanding under this Section 7.10 at any given time.
Loans shall be made available to all Participants on a reasonably
equivalent basis, except that the Committee may make reasonable
distinctions based upon credit-worthiness, other obligations of the
Participant and other factors that may adversely affect the ability to
assure repayment. The decision as to whether a loan shall or shall not be
made in any case shall rest solely within the discretion of the Committee,
such discretion to be exercised consistently with the provisions of
Section 9.05 and with such procedures as the Committee may establish
pursuant to this Section 7.10. Loans approved under this Section 7.10
shall be made as soon as reasonably practicable after the Valuation Date
next following timely receipt by the Committee of the Participant's
written application.
Each such loan shall be made at such reasonable rate of interest as
the Committee may determine, and shall be subject to such other terms and
conditions as the Committee may deem proper, and shall be evidenced by the
promissory note of the Participant and secured by at least fifty percent
(50%) of the Participant's interest in the Plan. Each such loan shall be
repaid by such means as may be authorized by the Committee, shall be
amortized over the term of the loan in level payments made not less
frequently than quarterly, and shall be repaid within five (5) years
unless such loan is used to acquire a dwelling unit which within a
reasonable period of time is to be used
113
(determined at the time the loan is made) as the principal residence of
the Participant in which case the repayment period shall not exceed twenty
(20) years.
Each such loan shall be deemed to be an investment made at the
direction of such Participant and shall be credited to a separate
investment account for the borrowing Participant. An amount equal to the
principal amount of such loan when made shall be charged to the interests
of such Participant's accounts under the Plan as designated by the
Participant.
A Participant may specify that a loan under this Section 7.10 is to
be charged to his interest in one or more specific Investment Media in
which his accounts are invested. Unless so specified, the loan amounts
shall be made out of the interest of such account in each Investment
Medium in accordance with the proportion which the interest of such
account in such Investment Medium bears to the total value of such
accounts, subject however to such restrictions as may be applicable to the
particular Investment Media.
All interest and loan repayments shall be credited to the
appropriate accounts of such Participant and shall be invested, pursuant
to such Participant's investment elections under Section 5.08. All
expenses incurred by the Committee and the Trustees, including reasonable
attorneys' fees and court costs, as a result of a default by a Participant
shall be charged against the Participant's accounts.
If any loan under this Section 7.10 is in default, as determined in
accordance with the procedures established by the Committee, when any part
or all of the amount standing to the credit of a Participant's accounts
becomes distributable to such Participant or his Beneficiary, the
Committee shall direct the Trustees to apply the amount of such
distributable amount in payment of the entire outstanding loan principal,
and any interest theretofore accrued, before distributing the balance, if
any, to the Participant or his Beneficiary."
B. Except as so amended, the Plan in all other respects, is hereby confirmed.
IN WITNESS WHEREOF, these presents have been signed and sealed for and on
behalf of the Employer by its duly authorized officer this 14th day of October,
1996.
XXXXXX XXXXXXX INCORPORATED
By: /s/ Xxxx Xxxxxxx
-----------------------------
2
114
XXXXXX XXXXXXX INCORPORATED
PROFIT SHARING RETIREMENT PLAN
March 1998 Amendment
A. The XXXXXX XXXXXXX INCORPORATED PROFIT SHARING RETIREMENT
PLAN (the "Plan") originally effective January 1, 1955, and most recently
amended and restated effective January 1, 1989, is hereby further amended in its
entirety to read as follows:
1. Section 2.15 is hereby amended by adding the following sentences
immediately following the first sentence thereto:
"In addition, the term "Investment Media" shall include any investment
fund established by the Trustees at the direction of the Committee which
shall be invested primarily in shares of common stock, $.01 per share, of
Freedom Securities Corporation, a Delaware corporation, which stock
constitutes "qualifying employer securities" as defined in section
407(d)(5) of ERISA and "employer securities" as defined in section 409(l)
of the Code ("Freedom Securities Stock"), and short-term interest income
vehicles (the "Freedom Securities Stock Fund"). Consistent with ERISA, the
assets of the Plan may be used to acquire and hold Freedom Securities
Stock in any proportions or amounts."
2. Section 4.02 is hereby amended by adding the following parenthetical
immediately after the term "Matching Contribution" on the second line thereof:
"(in cash or shares of Freedom Securities Stock, in the discretion of the
Company)"
3. Section 4.03 is hereby amended in its entirety to read as follows:
"4.03 Company Contributions. The Company shall contribute as a
Company Contribution (in cash or shares of Freedom Securities Stock, in
the discretion of the Company) to the Plan on account of each Plan Year
such amount, if any, as may be voted by the Board of Directors in its sole
discretion for said Plan Year."
4. Section 5.06 is hereby amended by adding "(a)" at the beginning of the
first paragraph thereto and adding the following subsection (b) to follow such
paragraph:
"(b) Freedom Securities Stock held by the Trust shall be valued
according to the following rules: (1) in the case of Freedom Securities
Stock that is publicly traded
115
on a national securities exchange, such stock shall be valued by reference
to the closing price of such stock on such exchange on the last trading
day immediately preceding the date such stock is contributed to the Plan
or other relevant date for which the valuation is to be performed and (2)
in the case of Freedom Securities Stock that is not publicly traded on a
national securities exchange, such stock shall be valued as of the date of
contribution or other relevant date by determining the fair market value
of such stock through the use of an independent appraiser."
5. Option A of Section 7.07(a) is hereby amended to read as follows:
"Option A. One lump sum payment (i) in cash, or (ii) in full shares of
Freedom Securities Stock to the extent of such Participant's
accounts interest in the Freedom Securities Stock Fund plus
the cash equal to the value of the remaining balance of such
Participant's accounts."
6. Article X is hereby amended by adding the following Sections 10.13 and
10.14 at the end thereof:
"Section 10.13 Voting of Freedom Securities Stock. Each Participant
or Beneficiary shall have the right and shall be afforded the opportunity
to direct the manner in which the shares of Freedom Securities Stock
representing the interest of such Participant or Beneficiary in the
Freedom Securities Stock Fund shall be voted at all stockholders'
meetings. To facilitate such right the Company shall deliver to each
Participant or Beneficiary a copy of all proxies, notices, and other
information which it distributes to its shareholders generally and the
Committee shall establish such procedures for the collection of
Participants' and Beneficiaries' instructions on the voting of such
Freedom Securities Stock and the timely transmission of such instructions
to the Trustees as it shall determine to be appropriate. Any Freedom
Securities Stock allocable to the interests of Participants and
Beneficiaries in the Freedom Securities Stock Fund for which no signed
voting-direction instrument is timely received from the Participant or
Beneficiary shall not be voted by the Trustees. The Trustees shall take
any and all necessary measures, including, but not limited to, the
retention of an independent outside tabulator, recordkeeper, auditor or
other person, to ensure that the instructions received from Participants
shall be held in strict confidence and shall not be divulged or released
to any person, including employees, officers and directors of the Company
or any Affiliated Company. Participants and Beneficiaries do not acquire
ownership of Freedom Securities Stock held by the Trustees unless and
until the Trustees deliver to them in accordance with Article VII hereof
stock certificates which have been registered in their names on the stock
books of the Company. For purposes of this Section 10.13, to the extent
the Plan does not meet the requirements of Section 404(c) of ERISA, each
Participant and Beneficiary shall be a named fiduciary under the Plan with
respect to his interest in the shares of Freedom Securities Stock held in
the Freedom Securities Stock Fund.
116
10.14. Tender Offer or Exchange Offer. In the event of a tender
offer or exchange offer by any person (including the Company) for any or
all shares of Freedom Securities Stock held in the Trust, each Participant
or Beneficiary shall have the right and shall be afforded the opportunity
to direct in writing whether the shares of Freedom Securities Stock
(including fractional shares) representing the interest of such
Participant in the Freedom Securities Stock Fund shall be tendered or
exchanged in response to such offer. The Trustees shall act with respect
to such Freedom Securities Stock in accordance with such written
instructions. Any such Freedom Securities Stock with respect to which
written instructions have not been timely received by the Trustees shall
not be tendered or exchanged. To facilitate the foregoing right of the
Participants, the Company shall utilize its best efforts to distribute or
cause to be distributed to each Participant substantially the same
information as may be distributed to the stockholders of the Company in
connection with such offer and the Committee shall establish such
procedures for the collection of Participants' and Beneficiaries'
instructions with respect to such Freedom Securities Stock and the timely
transmission of such instructions to the Trustees as it shall determine to
be appropriate. The Trustees shall take any and all necessary measures,
including, but not limited to, the retention of an independent outside
tabulator, recordkeeper, auditor or other person, to ensure that the
instructions received from Participants and Beneficiaries shall be held in
strict confidence and shall not be divulged or released to any person,
including employees, officers and directors of the Company or any
Affiliated Company. For purposes of this Section 10.14, to the extent the
Plan does not meet the requirements of Section 404(c) of ERISA, each
Participant and Beneficiary shall be a named fiduciary under the Plan with
respect to his interest in the shares of Freedom Securities Stock held in
the Freedom Securities Stock Fund."
B. Except as so amended, the Plan in all other respects, is hereby confirmed.
IN WITNESS WHEREOF, these presents have been signed and sealed for and on
behalf of Xxxxxx Xxxxxxx Incorporated by its duly authorized officer this 27th
day of March, 1998.
XXXXXX XXXXXXX INCORPORATED
By: /s/ Xxxx Xxxxxxx
-----------------------
